45 A.2d 249 | Pa. Super. Ct. | 1945
Argued December 11, 1945. An issue was awarded on the petition of Eva Stein, (Act of June 10, 1893, P.L. 415, 12 PS 1545) to try title to the land claimed by the present appellants. The case was tried by the court without a jury and resulted in a judgment in favor of Eva Stein for the land in question. The judgment will be affirmed.
The common source of title, under which both plaintiffs and defendant claimed, is the will of Ida J. Boger, *466 who owned the land when she died in 1937. Albert F. Boger was her son by decree of adoption entered on June 19, 1922. Her will provided: "Item II. I devise, bequeath and give unto my adopted Son, Albert F. Boger the entire Farm which I now own including all stock and equipment and household furniture. It is my wish and desire that a guardian be appointed by the Orphans' Court until he arrives at the age of twenty-one. The Executrix shall have controlling power over the farm until Albert F. Boger arrives at the age of forty years, to see to it that Albert F. Boger pays all taxes on the farm, and keeps it in good repair and that he cannot sell the farm before the age of forty years, and also cannot make a loan thereon before that age. Everything he raises on the farm is his, except taxes and repairs. At the age of Forty the Executrix has full power to execute a deed unto him clear of all encumbrances, same as if I was living. In case he does not accept the farm under these conditions at the age of twenty-one the executrix has full power to sell either at public or private sale and give good and sufficient deeds to the highest bidder thereof and divide the proceeds unto all the heirs mentioned in the last item of this will." "Item VI. All the remainder of my estate, including real, personal or mixed of whatsoever nature or kind, I give and devise, bequeath unto" others, whose interests are vested in the appellants, plaintiffs in the issue.
Albert F. Boger was born on May 9, 1920, and, after the death of testatrix, Merchants National Bank of Allentown was appointed his guardian. The guardian went into possession and managed the farm for his benefit. He came of age on May 9, 1941, whereupon, after the final account of his guardian was confirmed, he appointed the same bank as his agent to continue to manage the farm for him. He entered military service on November 25, 1941, and was killed in action on July 29, 1943. By his will, dated November 22, 1942, he devised his estate in fee, to his sister, Eva Stein. *467
It is appellants' contention that testatrix intended to devise to her son an estate less than a fee and that since he did not live to age 40, the limitations on acquiring the fee were not fulfilled and his will passed no title to Eva Stein, his devisee. It is certain that the first sentence of Item II of the will vested a fee in the son, unless, by words of limitation or otherwise, it appears that testatrix intended to devise a less estate. Wills Act of June 7, 1917, P.L. 403, § 12, 20 PS 224; Wraught Estate,
There must be an acceptance of a devise before a fee can vest. But though ordinarily there is a presumption of acceptance by the beneficiary of a will, (Darlington v.Darlington,
Construing the will in accordance with well settled principles — Intent must be ascertained from the will in its entirety. In re Dutton's Est.,
Where the dominant purpose is to devise a fee, it is not to be cut down by provisions which otherwise would detract from the attributes of such estate. Pattin v. Scott,
Judgment affirmed.