25 Pa. Super. 451 | Pa. Super. Ct. | 1904
Opinion by
The will of Christian Frederick Martin, after directing his debts to be paid, and bequeathing certain specific chattels to his wife, the plaintiff, disposed of his whole estate, both real and personal, in a single sentence: “ Also, I bequeath to my wife Lucinda the whole of my estate, both real and mixed, after her death the same, or whatever remains thereof, to be divided equally amongst my children, or their legal heirs, share and share alike.” The presumption that the testator did not intend to die intestate as to any part of his estate is aided by the advisory provision, relating to the management of the personal property, which follows the bequest: “I do further direct that the business of manufacturing guitars, etc., be carried on by my wife and my son Frank in joint partnership, he (Frank) to superintend the business and pay interest for half the capital invested, the profits to be equally divided between them, and he (Frank) to have the privilege of buying a part or whole of said business, at the discretion of both parties.” This clearly indicates the belief of the testator that he had personal property, other than the chattels specifically bequeathed, and that it was his intention that such personal estate should pass to his wife, under the designation “ estate, both real and mixed,” in the clause first above quoted.
The question presented by this record is whether the widow, Lucinda, took a life estate or a fee in the lands óf which the testator died seized, under the clause of the will above recited. The word “ estate ” in this will, would have carried the fee independent of the Act of April 8, 1888, P. L. 249, but there is not the same clear indication of intention as where the fee is expressly given, by the use of words of inheritance or perpetuity : Fox’s Appeal, 99 Pa. 382. If what follows the devise to the widow had been omitted, there can be no question that the devise carried an estate in fee simple in the land, but there was, in the same sentence, a devise over to the children of the testator and their heirs, and the intention of the testator is to be gathered from the four corners of his will. The devise to the widow was general, but without words of inheritance, and without conferring upon her the power to sell, or consume. The will made no attempt to restrain the widow in the alienation of the estate which she took under its terms, nor did it
The learned counsel representing the appellant has with great ingenuity and ability argued that as the devise over was of the estate, “or whatever remains thereof,” an implication arises that it was the intention of the testator that the widow should have power to convey. This contention is attempted to be supported upon the authority of those cases in which the will conferred upon the first taker an express power to convey or devise, or to consume for her support the proceeds of the land, or where a restriction upon the power of alienation was held to be repugnant to the estate devised to the first taker. The words of the will upon which it is sought to found an implied power in the widow to sell lands are found in the devise over, to the children and their heirs : “ after her death the same or whatever remains thereof, to be divided equally amongst my children or their legal heirs.” The words, “ the same ” refer to the subject of the devise, the whole estate both real and personal. “ The same, or whatever remains thereof,” is the description of the subject-matter of the devise, what property shall pass under the devise to the children and their heirs, and serves no purpose to define the nature of the estate which they took. The bequest of the personal property to the widow for life, with power of disposition, vested in her an absolute estate, but the husband had in another part of his will used precatory words indicating his desire as to the disposition which should be made of such personal property, or at least a
The judgment is affirmed.
