Nieman's Estate, 229 Pa. 41

Nieman's Estate

229 Pa. 41 | Pa. | 1910

Opinion by

Mr. Justice Brown,

The claim of the appellant that his decedent took an absolute estate from her husband is based upon the second clause of the latter’s will. It contains a condition that certain legacies are to be paid, and these in turn have annexed to them conditions which require an examination of the whole will and codicil to discover the real intention of the testator in disposing of his estate. By the fifth clause of his will he declares that the condition annexed to the gift and devise to his wife is that after her death all the estate, real, personal and mixed, of which she may die seized is to be disposed of by his executors in the manner which he proceeds to describe. His wife had no es*46tate of her own at the time of his death and never acquired any subsequently. . What she died “seized of,” in the language of his will, was his estate increased by unexpended income. The ten lots which she purchased and to which she took title were paid for out of the funds belonging to his estate. Passing from the will to the codicil, there is found a repetition of the testator’s intention . that his wife should not take his estate absolutely. He declares in the first clause, “It is my will and intention that my said wife, Johanna M. Nieman, shall have full power and authority to apply such portion or portions of my said estate, the principal as well as the income thereof, to her own use during her life; and after her death such'property of which she shall die seized, shall be applied as in my said will directed.” That she might be in the complete enjoyment of his real estate, with power to consume it, he gave her authority to sell and convey it in fee'simple. There is no direction to accumulate income, but a blending of it with the principal, with power to consume a part or the whole of either or both, and, to the extent that she might consume, an absolute estate was given to her. It did not extend to what was not consumed. What remained unconsumed at the time of her death continued to be part of her husband’s estate, to be disposed of as such by his executors, and not by her personal representative as her estate. The learned judge below tersely, but clearly, states the situation as follows: “The estate in her was absolute to the extent that she saw fit to consume or use it: Nieman’s Est., 131 Pa. 346. There was no limitation upon her power to appropriate, during her life for her own use. What she used was hers absolutely, and the remainder belonged to his estate: Gross v. Strominger, 178 Pa. 64; Trout v. Rominger, 198 Pa. 91. While the estate, principal and income, was in her for her own use, coupled with the power of sale and conversion, what she did not expend, consume or use he disposed of otherwise, and it must pass by his will: Dickinson’s Est., 209 Pa. 59.”

*47There is no dispute about the facts in the case, and, in view of the clearly expressed intention of the testator, that what his widow should not consume should continue to be his estate, which he disposed of by his will, the proceeding instituted by the appellee to get control of it was a proper one: Tyson’s Est., 191 Pa. 218. The assignments of error are overruled and the decree is affirmed at appellant’s costs.