228 Pa. 52 | Pa. | 1910
Opinion by
The only question raised by this appeal concerns the quantum of the estate taken by the widow under the following will: “I. Fully convinced, that my wife Philippina (née Doll) is able as well as willing, after my de
In case of doubt the construction of a will should be in favor of the first rather than of the second taker; of a general or primary intent rather than of a particular or secondary one; and where a devisee is subjected to a charge or burden, doubts as to the quantum of the estate should be resolved in his favor: Jackson’s Est., 179 Pa. 77.
The testator refers to the estate as “our joint prop
“Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee:” Witmer v. Delone, 225 Pa. 450. The present will, by clear implication, gives to the widow the power to sell and dispose of the estate. The executors are expressly appointed “to assist my wife in the execution of my real and per
The words of the devise, taken in connection with the other parts of the will, are sufficient to vest a fee in the widow. In Snyder v. Baer, 144 Pa. 278, the words, “I direct that' my beloved wife shall have and hold the property where I now reside,” were held to carry a fee.' In the present instance the testator directs that his wife shall take possession of and enjoy all of his real and personal estate. In Campbell v. Carson, 12 S. & R. 54, we held that a devise to a wife of property “to be by her freely possessed and enjoyed” passed a fee; and this was before the Act of April 8, 1833, P. L. 249. “The Act of 1833, changes the rule of construction by its command that ‘All devises of real estate shall pass the whole estate of the testator in the premises devised .... unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.’ Starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator:” Keifel v. Keppler, 173 Pa. 181. There is no devise over in the present will; nor does it appear by words of limitation or otherwise that the testator intended to give his wife an estate less than a fee. The fee given to the wife was not cut down to a life estate by the provision that she was to take possession and enjoy the estate “for the time that she remains a widow,” or by the further provision that in the event of her marriage the estate was to be divided between herself and the testator’s children according to the intestate law. There are cases where provisions restricting a widow to the enjoyment of the property during widowhood have been held to limit the estate to her life, and others where the contrary has been ruled.
In the present case there is sufficient in the will to show an intention that the widow should take a defeasible fee and there is not enough to restrict the devise to an estate for life. The widow not having remarried, the fee became absolute upon her death, and the real estate in question passed under her will.
The assignments of error are overruled and the judgment is affirmed.