88 Pa. Super. 113 | Pa. Super. Ct. | 1926
Argued April 29, 1926. The plaintiff in this action of ejectment recovered a verdict and judgment for one undivided sixth of the land in dispute, and the defendants assign for error the refusal of the court below to enter judgment in their favor non obstante veredicto. The question raised by this appeal is dependent for its solution upon the construction of the will of William Hirt, the material provisions of which are as follows: "I do give, devise and bequeath all my property real and personal and mixed of whatsoever kind and wheresoever the same may be found at the time of my death, unto my beloved wife, Hortensia Hirt, to her and her heirs *115 and assigns forever and after her death, whatever property there may be left shall be equally divided among my children share and share alike. And to avoid misunderstanding it is my will, to grant my said wife full power and authority to sell or mortgage my said estate at any time she may see proper to do, and make good and lawful deeds or assurances for such purpose."
Hortensia Hirt survived her husband and entered into possession of the property in question. She subsequently intermarried with Peter Stief and as a result of this second marriage had one child, Ferdinand P. Stief, a weak-minded person of whom the Fidelity Title Trust Company was appointed guardian. Hortensia Hirt Stief died April 2, 1895, intestate, and without having disposed of the real estate in question. William Hirt left five children surviving him and all were living at the time of the death of Mrs. Stief, their mother. The said five children executed and delivered a deed for the said property to Nikola Mamula and his wife, who subsequently conveyed the property to these defendants and the latter entered into possession of the property. This action of ejectment was subsequently brought by the plaintiff averring that Hortensia Hirt took an estate in fee simple in the land under the provisions of the will above quoted and that Ferdinand P. Stief, upon the death of his mother, inherited one undivided sixth interest in the land, as one of her children. The appellants contend that Hortensia Hirt took under the will a life estate with power to consume and that the widow not having disposed of the property during her lifetime the children of William Hirt took title to the land under the will of their father, the donor.
The first clause of the provision of the will above quoted, standing alone, would undoubtedly vest in the widow title in fee simple to the land, but that clause *116
is not to be segregated from the concluding words of the sentence of which it was a part. "No principle is better settled than that if a testator in one part of his will gives to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right. ..... Both the admitted rules of legal construction and the statute regard a limitation over after the death of the first taker, as evidence of an intention that the devisee or legatee of the prior estate in order of enjoyment is to have no more than an estate or interest for life": Sheets' Estate,
The judgment is reversed and judgment is here entered for the defendants non obstante veredicto.