135 A. 262 | Pa. | 1926
Elizabeth P. Fairman, wife of W. M. Fairman, Esq., of Jefferson County, died May 1, 1921, her last will being as follows: "First. I give and bequeath to my husband, W. M. Fairman, all my property, personal, real and mixed, to him and his assigns, forever. 2nd. At his death if any is left I direct it to go to my sister, Mary A. Jefferson, if living at the death of W. M. Fairman, if not then to my brother's children, share and share alike. 3rd. I hereby appoint my husband W. M. Fairman, sole executor of this my last will and testament." W. M. Fairman, who survived his wife, died May 31, 1925, and his last will purports to give the property acquired, by virtue of his wife's will, to the same legatee, Mary A. Jefferson. The latter's title is unquestioned, the only point is under which will it vested; if under that of Mr. Fairman, it is subject to the transfer inheritance tax here claimed. Upon the death of Mrs. Fairman an inheritance tax was charged against her estate and paid. The trial court found her will conferred upon her husband a life estate with right of consumption, and what was not consumed, practically her entire estate, passed under her will to her sister, the appellee, not subject to be taxed as the husband's estate; thereupon the Commonwealth brought this appeal. *336
In our opinion the case was rightly decided. True, the language of the first clause of the will was sufficient to vest in Mr. Fairman a fee simple estate; the word "heirs" not being necessary in a will under the Act of April 8, 1833, P. L. 250 (4 Stewart's Purdon's Digest 5137), or as reënacted by the Wills Act of June 7, 1917, P. L. 407. It is also true that an estate devised in fee cannot by subsequent limitations be stripped of its legal incidents, like the power of alienation: Pattin v. Scott,
The decree is affirmed.