171 Pa. 301 | Pa. | 1895
Opinion by
It is unquestionable that Mary Rice the widow would only have taken a life estate at common law. But under our wills act of 1833 the whole estate passes by a devise without words of inheritance unless the intention of testator appears to have been to devise a less estate. The testator here devised to his widow “for her own proper use and behoof, as long as she shall remain my widow,” which are apt words to create a life estate and would certainly have done so had the will stopped here. But it did not. It continued “and if she should get married then she shall only be entitled to the one third in said property, the balance being two-thirds, to my youngest daugh
The plaintiff’s construction would make the testator die intestate as to the fee, a construction which is never to be favored in cases of doubt, and which in this case would be irreconcilable 'with the unquestionable contingent devise in fee to Kate and William. Moreover, if the testator intended to die intestate in regard to the fee in case his widow did not marry again, then the fee would go to all his children equally. But if she did marry then he has clearly provided that the fee in two thirds shall go to Kate or to William, and only in ease of the death of both of them, does any part of the two thirds go to the other children. Why this distinction ? Why should the share of Kate or William be disproportionately increased, and that of the other children reduced, by the circumstance of the widow’s
. Taking the entire clause of the will together it shows that the testator’s intent was to give his whole estate to his widow in fee, subject to a condition that she should not marry again, and defeasible as to two thirds upon the breach of that condition.
. The learned judge below thought the interpretation of the language of this will was governed by that in Cooper v. Pogue, 92 Pa. 254, and Long v. Paul, 127 Pa. 456. In so far as the devises were to the testator’s widow so long as she remained such, and in the latter case with a reduction upon her second marriage, the cases are closely alike, but in neither of those cited was there the additional language to be found in the will of Thomas Rice, which as already said develops his intention as to the quantity.of estate that he intended to give, and enlarges the life estate to which the first gift would have been limited had it stood alone. Precedents are of little value in the construction of wills, because when used under different circumstances and with different context, the same words may express different intentions. When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same words with a different meaning is of no avail. Neither precedents nor rules of construction can override the testator’s expressed intent.
The question of estoppel does not arise. As the widow took a fee, which though defeasible was never defeated, the plaintiff never had any title at all, and the verdict should have been directed for defendant.
Judgment reversed.