249 Pa. 90 | Pa. | 1915
Opinion by
Milton Huber died August 17,1898. By his will, duly admitted to probate, he appointed his wife sole executrix, and provided as follows: “After all the payments of my said debts and funeral expenses and the two hundred dollars bequeathed to the Wildwood Cemetery Company, I give and devise to my beloved wife, Maggie Huber, all the real and personal estate owned by me at my decease, she to dispose of any or all of the real or personal estate she wishes to for her own use, so long as she remains my widow, on her decease or marriage, all of what is left to revert back to my legal heirs.” The widow died testate March 24,1913, without having filed an inventory or account in her husband’s estate. Letters testamentary were duly issued to her executrix, Irene G. Hamilton, the appellee, and the proceeding in the court below, brought up for review on this appeal, was insti
Huber v. Hamilton is meagerly and inaccurately reported, as clearly appears from the paper books in the case, which I have before me. The court below did not, as the reporter states, hold that the widow of Milton Huber had taken “an estate in fee simple” under the clause in her* husband’s will now before us for interpretation. That was not the question before the then learned president judge of the Court of Common Pleas, who heard and disposed of the case without a jury. Between five and six years after her husband’s death, Mrs. Huber, as “executrix and legatee” under his will, entered into a written agreement with T. B. Hamilton to convey to him certain real estate of which the testator had died seized. The sole question before the court below, as appears from the pleadings, the opinion of President Judge Habt and his answers to the points submitted to him, was as to the power of Mrs. Huber to sell the real estate to Hamilton. The question whether she took a fee simple under her husband’s will was neither considered nor passed upon by the lower court, though the clearly expressed view of that court was that what the testator contemplated should revert to his legal heirs was what might be left of his estate at the remarriage or death of his wife, that is, that portion of it which she had not disposed of in her lifetime while she remained unmarried.
The decree of the court below is reversed, the petition for a citation is reinstated and the rule to show cause why it should not issue is made absolute, the costs below and on this appeal to be paid out of what may be left of the estate of Milton Huber, deceased.