79 Pa. 141 | Pa. | 1875
delivered the opinion of the court, October 18th 1875.
The maxim is imbedded in the common law that an heir can be disinherited only by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed : 1 Jarman on Wills 465. That this rule has been uniformly recognised in Pennsylvania is proved by all the cases in which the point has been discussed. In French v. McIlhenny, 2 Binn. 13, it was said, that it “ should be observed with more strictness here than in England, because our laws of inheritance are more equal,” and this language was quoted with the approval of Lewis, J., in McIntyre v. Ramsey, 11 Harris 317. In the present case there is no room for construction. No words were used by the testator that could be so stretched as to create the implication of an intention to give any interest in his general real estate to his granddaughter, except upon the single contingency that her mother should give birth to other children. It is true, if the contingency had happened, the effect would have been entirely to disinherit Mrs. Buttorff, although it may well be doubted whether any such purpose was designed. The contingent clause in the will proves that the granddaughter, as such, was not intended to be the principal beneficiary of the testator. Its object was to protect all the children of his daughter equally. It may be that the intention was imperfectly expressed, or that the effect of the provision was imperfectly understood. This, however, is mere matter for conjee
It is urged that the expressed intention of the testator to dispose of his “worldly estate” is to be taken, in connection with the devising clauses, as implying a purpose to vest all his lands in his granddaughter. It might be a sufficient answer to this suggestion, to say, that every implication from the use of the introductory words in the will is adequately met by the executory devise in favor of the grandchildren on the contingency for which the will provided. But the use of general 'words like these, though always to be carried down to the devising clauses in order to illustrate the testamentary intention, do not of themselves create a fee, and will not carry an estate that is clearly omitted: Busby v. Busby, 1 Dall. 226; Cassell v. Cooke, 8 S. & R. 289.
With this view of the main dispute, discussion of the subsidiary questions presented by the record would be supererogation. No