50 Pa. 128 | Pa. | 1863
The opinion of the court was delivered, by
By his will the testator first gave the property now in controversy to his nephew Emlen Physick, absolutely; to him, his heirs, executors, administrators, and assigns for ever. Subsequently, by a codicil to his will, reciting the previous gift in fee simple, he revoked so much as gave the property in fee, and instead thereof devised and bequeathed it to trustees, for the use of his nephew for and during his natural,life, with a power of appointment by will to such child or children, grandchild or grandchildren, as the tenant for life might direct, and in default of appointment, ordered the remainder to be equally divided among the right heirs of his said nephew, to them, their heirs, executors, administrators, and assigns for ever. That the intent was to give to Emlen Physick but an estate for life, is beyond doubt. It is expressly avowed, and the testator made a change in his first testament, an arrangement for no other purpose than to substitute in lieu of a fee a particular estate for life with subsequent remainders. The property was also given to trustees to sustain and carry out the ulterior limitations. Thus much must be conceded. The power was never executed, and the trusts are not of a character to affect the title. The estate given to the first taker and that given in remainder are both legal, for the law executed the trust. This is not controverted. If, then, Emlen Physick took more than an estate for life, it must be because the limitations of the remainder were such as to bring the gift within the rule in Shelley’s Case, and enlarge the estate of the first taker in despite of the intent of the donor. It is admitted that the plain intention to give no more than a life estate must fail, if there was also an intention that the remainder-men should take by descent as heirs of the devisee of the particular estate. In every such case the rule inexorably determines, that the ancestor shall have an estate
The gift of the life estate and remainder is then plainly within the rule in Shelley’s Case, and the court erred in decreeing that Emlen Physick did not take a fee; consequently the widow is entitled to share in the distribution.
The decree of the Orphans’ Court is reversed, and it is ordered, adjudged, and decreed, that one equal third of the sum for distribution be paid to Frances Mary Physick; one half of the remainder is awarded to the guardian of Emlen Physick, and the other half to the guardian of Ellen Elizabeth Physick.
Subsequently, on exception to the report of the master making distribution in accordance with the foregoing decree, the following amended opinion and decree were made by
Strong, J. — In making our decree at January Term 1863, in the matter of the appeal of Frances Mary Physick, we inadvertently fell into an error. The only question argued before us related to the estate which Emlen Physick took under the will of Samuel Emlen. That we held to have been a fee simple, and consequently we decreed that the appellant was entitled to one equal third part of the fund for distribution. There our decree should have ended. But in order to dispose of the entire fund, we awarded one half of the remainder to the guardian of Emlen Physick the younger, and the other half to Ellen Elizabeth Physick, the soiihand daughter of the devisee in fee, under the will of Samuel Emlen, without noticing that a disposition of the fund had been directed by the will of that devisee. This was an error, and our decree is to be corrected so far as it awards any part to Ellen Elizabeth Physick, and only one-half of the remainder, after deducting the share of Frances Mary Physick, to Emlen Physick. The property passed under the residuary devise and bequest to the trustees named in the will, diminished by what the widow was entitled to receive. It was not a case of intestacy. Of this we have no doubt. The master followed our decree, and therefore made an erroneous distribution.
Let our decree be corrected by striking out so much thereof as directs a distribution of the remainder, after deducting the sum awarded to Frances Mary Physick, and let the case be referred back to Joseph A. Olay, Esq., to make distribution of the said remainder according to the directions of the will of Emlen Physick, deceased, and let the costs of this appeal he paid out of the fund.