139 A. 144 | Pa. | 1927
Argued May 18, 1927. The court below entered judgment for defendant on a case stated and plaintiff has appealed. The facts agreed upon are briefly as follows: Catherine Naylor made her will, dated September 23, 1910, with a codicil dated January 14, 1911, and died on December 6, 1911, leaving to survive her a son, Francis M. D. Reiff, a daughter, Catherine E. Hutton, and two grandchildren. Plaintiff, George Francis Reiff, is one of the latter; at the time of filing the case stated he was past twenty-one years of age, unmarried, and without issue. Testatrix provided in her will, inter alia, as follows: "I give . . . . . . to George Francis Reiff all that certain house and lot [the property in controversy]. He . . . . . . not to sell such house and lot . . . . . ., and after his death the same to belong to and invest in and become the property of his children, share and share alike, to be theirs absolutely." Plaintiff took possession of the property in question, and, August 1, 1926, entered into a contract to sell it to defendant, agreeing to deliver to the latter "a title in fee simple, free and clear of all encumbrances." Defendant refused to perform his contract of purchase, alleging that "plaintiff does not own the said real estate *511 in fee simple and is unable to make and deliver . . . . . . a deed that will vest title in fee simple." The case stated contains an agreement that, if the court should be of opinion "that the said will of Catherine Naylor under the law vests in plaintiff a fee simple title, then judgment to be entered in favor of plaintiff . . . . . ., and if the court be of the contrary opinion, then judgment to be entered in favor of defendant, with costs of suit," each party reserving the right to appeal.
It is quite clear that, under section 9 of the Act of April 8, 1833, P. L. 249, reënacted by section 12 of the Act of June 7, 1917, P. L. 403, 407, the first words of the above-quoted devise to plaintiff, read alone, would be ample to vest a fee; but the act in question particularly provides that devises, without "words of inheritance," shall vest a fee "unless it appear by words of limitation or otherwise in the will, that the testator intended to devise a less estate," and we agree with the court below that such intention does appear in this case. Here testatrix, immediately after the words of devise, and in the same paragraph with them, provides that the devisee is "not to sell such house and lot," then the following words occur, "and after his death the same to belong to and invest in and become the property of his children . . . . . ., to be theirs absolutely." If the provision against a sale were all that followed the gift to plaintiff, it could well be construed as not sufficient to cut down a fee, and be dismissed from consideration as inconsistent with the previous devise of what, standing alone, would be an absolute estate (Pattin v. Scott,
Where words sufficient to vest a fee are first used in a devise, and those which follow apparently indicate a contrary intention, the court must, in each case, after considering the whole will, decide as to the primary or general intent of the testator; if it be to give an absolute estate, then subsequent words expressing a secondary and particular intent cannot restrict the gift or strip the fee of its ordinary attributes (Walker v. Vincent,
The case of Williams v. Leech,
Thus we see, by analyzing testatrix's manner of expression, that the provision in the present devise, to plaintiff and after his death to his children, was intended to give only a life estate to the former and the fee in remainder to the latter; for, should we adopt appellant's construction of this devise, as showing an intention on the part of testatrix not to make a gift to the children of plaintiff but to treat him as a source of inheritable succession, merely indicating such children as heirs of his body, or issue, it would follow that the subsequent provisions of the will, disposing of testatrix's residuary real estate and residuary personal estate, where she says in plain terms that the first devisee is to take but a life estate, and then, in each instance, uses practically the same phraseology in disposing of the remainder as employed in the present devise, would have to be construed in a like manner, and, under the rule that a gift over to heirs of the body, following a life estate, vests a fee in the first devisee, testatrix's plainly expressed and twice reiterated intention in disposing of her residuary estate would be defeated, and those to whom she expressly gives only a life estate would take a fee, while those to whom she gives her property "absolutely" *515 would get nothing. This would obviously be a wrong construction.
In the will now before us, testatrix did not, as in Cross v. Miller,
The fact that, in place of saying "I give," testatrix stated that the devised premises were "to belong to and invest in and become the property of [the first taker's] children . . . . . . absolutely," is not controlling; for, when an outright gift is evidently intended, other forms of expression may have the same significance as the set phrase "I give and devise": Brown's Est.,
As we have said many times before, precedents are of little value in the construction of wills, because, when used under dissimilar circumstances and with different contexts, the same words may express various intentions. When the actual intention in any instance can be gathered from the words of a will, the fact that another testator may have employed practically the same words with a different meaning is of no avail. The authorities cited in this opinion are used by way of illustration rather than as precedents; the will in its entirety expresses clearly the intention to confer only a life estate on plaintiff, and, hence, the court below did not err in entering judgment for defendant.
The assignment of error is overruled and the judgment is affirmed. *517