270 Pa. 49 | Pa. | 1921
Opinion by
This action was instituted to recover an unpaid balance of the purchase price of real estate, which plaintiff agreed in writing to sell to defendant; judgment was entered for want of a sufficient affidavit of defense, and the [present appeal followed.
The testamentary provision in question, contained in the will of Louisa W. Torburgh, deceased, dated March 24, 1903, and probated on the day of her death, October 22, 1903, reads thus: “Eighth. All the rest residue and remainder of my estate, real, personal, and mixed, I give, devise and bequeath to my niece, Lou Anna Pattin, and her heirs forever, with this proviso, that she, my said niece, shall not have the right to sell and convey in fee simple that portion of my real estate, passing under this clause of my will, situate in the Second Ward of the City of Pittsburgh, being a lot forty by eighty feet in the North East corner of Second Avenue and Cherry Alley, comprising premises Nos. 425 and 427 Second Avenue, for a period of Twenty-five (25) years after my decease.”
Where a testator in the first instance uses language suitable to the grant of a fee simple estate, but, by subsequent words, immediately following in the devise, indicates a dominant intent to give only a less estate, the latter purpose will be upheld: Sheets’s Est., 52 Pa. 257, 263; Urich v. Merkel, 81 Pa. 332, 335; Boulevard from Second Street, 230 Pa. 491, 495; Field’s Est, 266 Pa. 474, 477; 1 Jarman on Wills, 416.
On the other hand, where it is apparent from the words of the will that the dominant purpose of the testator is to devise a fee simple estate, and the subsequent language indicates merely a subordinate intent to strip the estate thus given of one or more of its inherent attributes, the law will hold that this cannot be done; and the fee simple estate passes to the devisee with all of its inherent qualities: Beifsnyder v. Hunter, 19 Pa. 41, 44; Walker v. Vincent, 19 Pa. 369, 371, 372; Doeblér’s App., 64 Pa. 14, 17; Sanders v. Mamolen, 213 Pa. 359, 361; Breinig v. Smith, 267 Pa. 207|, 211.
As against the dicta above referred to, we have the language of this court in Hauer v. Shitz, 3 Yeates 205, 220, where, following the devise of a fee, there was a provision restraining alienation until the devisee reached the age of thirty, and we said: “If by the will there was a vested fee simple......the prohibition, to sell till 30 would be absolutely nugatory”; and in Yost v. Insurance Co., supra, relied on by appellant, we said, “the weight of authority seems to be against such restraint, however limited as to time,” citing 6 Am. & Eng. Ency. of Law 877, note 4.
The following cases and textbooks indicate that the Aveight of authority is as just stated: Krueger v. Frederick, 102 Atlantic Rep. 697, 698, 88 N. J. Eq. 258; Potter v. Couch, 141 U. S. 296, 315; Zillmer v. Landguthi, 94 Wis. 607, 609; McIntyre v. Dietrich (111.), 128 N. E. Rep. 321, 323; Manierre v. Welling, 24 Ann. Cas. 1311; Hause v. O’Leary, 136 Minn. 126, 129; Twitty v. Camp, Phil. Eq. (N. C.) 61, 62; Anderson v. Carey, 36 Ohio 506, 517; 40 Cyc. 1588; Underhill on Wills, vol.
In Manierre v. Welling, supra, will be found a most elaborate judicial consideration, by the Supreme Court of Rhode Island, of attempted limitations on alienation, discussion concerning the particular point of a limitation restricted as to time occurring at page 1321 et seq., with pregnant matter at page 1324; finally, a note, citing additional American cases, at page 1329, states the conclusion that, where an estate in fee simple is granted, “a clause in the deed or will which is in restraint of alienation is void and will be rejected,” further “that this is so even though the restraint is limited as to time.” Judge Penrose, in Singerly’s Est., 14 Phila. 313, 316, expresses the same opinion; the matter under discussion is also referred to, but not decided, in Stone v. Carter, 48 Pa. Superior Ct. 236, 239.
Apparently there is no direct Pennsylvania ruling on the precise point here involved; but this court, in recent years, has repeatedy said that “a testator in giving a fee cannot strip it of its nature and properties. He cannot withhold from such an estate qualities which the law recognizes as inseparable from it”: Boulevard from Second Street, 230 Pa. 491, 495; and see Levy’s Est., 153 Pa. 174, 179; Jauretche v. Proctor, 48 Pa. 466, 471; Phila. v. Girard’s Heirsi, 45 Pa. 9, 27; Huber v. Hamilton, 211 Pa". 289, 290; and Allen v. Hirlinger, 219 Pa. 56, 58. After formally giving a fee, to deny the right of alienation for twenty-five years, as in the present case, is as much an attempt to “withhold” an “inseparable quality” as to deny it entirely—the only difference is in degree, not in character.
In the case at bar, “no one could limit a fee simple more artistically and precisely” (Reifsnyder v. Hunter, 19 Pa. 41, 44) than does the present testatrix; and it is
We agree with the court below that plaintiff has a fee simple in the real estate here in controversy, with all the attributes thereof, including the right to convey a good and marketable title.
The assignments of error are overruled and the judgment is affirmed.