3 Pa. Super. 65 | Pa. Super. Ct. | 1896
OPINION OF THE COURT BELOW.
The case stated presents for decision but one question, “ Did the testator devise to his son, Edward Schuldt, a life estate or a fee simple ? ” The first portion of the second item, “ I give and bequeath, to my son, Edward Schuldt, the income of the following described properties, namely, 816 Penn Street, 919, 915, 921 Franklin Street, and 815½ Cherry Street, Reading, Pa.,” if standing alone, undoubtedly would pass the fee. It is well settled that a devise of the rents and profits or of the income passes the land itself: Drusadow v. Wilde, 63 Pa. 170. But since the act of 1833, all devises of real estate pass the whole estate of the testator in the premises devised unless it appear by a devise over or by words of limitation or otherwise in the will that the testator intended to devise a less estate: And, as was said in Kiefel v. Kepler, 173 Pa. 181, “ starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator.”
We fail to discover anywhere in the will of the decedent that the testator intended to devise a less estate than a fee simple. The scheme of disposition is well defined. He intended to dispose of his whole estate. He starts with a bequest of 140,000 personalty to his wife. The second item is a disposition of what he conceived to be a proper share to his son Edward. The avowed object and purpose expressed in this item is to place the income in the hands of the son and under his sole control, so that he, as the head of the household, might provide for the support of himself, wife and children. He is not made a trustee of any fund for the wife and children, but he is made the absolute, uncontrolled disposer of anything that he may receive. The third item disposes of the share to his daughter Agnes. The fourth item disposes of the share to his grandchildren Agnes and Louise. The next item changes the bequest of the first item to his wife, directs the fund to be invested, and, in express and apt words, makes of this fund an estate in trust, the interest payable to the wife during life, and, after death, to grandchildren.
The first clause of the second item in the will standing by itself devising a fee, this item should not be construed to pass a less-estate, unless apt and express words require it to be done, or the clearly ascertained intention of the testator to reduce the fee to a life estate is shown to exist. That he trusted his son Edward appears from the fact that the entire income is placed in his hands at his absolute disposal, and this demonstrates that the direction with regard to the Trust Company was not inserted from any want of confidence in his son. Why it was added is not clear, except the direction be considered either in the light of a recommendation, or it be declared nugatory on the ground of its being an ineffectual attemptto limit the fee already granted.
The estate is not devised to the Trust Company in trust. No duration of any trust is prescribed, no limit as to when it shall cease. Even if by implication it should be held to cease at Edward’s death, it would leave the fee of the real estate undisposed of. To hold that he devised a life estate, is to say that, notwithstanding the avowed object of the devise is to furnish support to Edward, his wife and family, his intention was to deprive the family of his bounty at Edward’s death. If a life estate, he died intestate as to the fee, and the houses devised to Edward for their support are to be frittered away amongst heirs in general under the intestate law. If such a result can be avoided, we are bound to do so. It never is presumed that a testator intended to die intestate as to any part of his estate if a contrary intention can be fairly deduced from the language of his will. The whole frame of the will shows an intention to dispose of the entire estate, and this intention, once ascertained, must control. Roland v. Miller, 100 Pa. 47; Miller’s Appeal, 113 Pa. 459.
Being, therefore, of the opinion that the estate devised, is a fee, judgment is entered in accordance with the case stated in favor of the plaintiff for the sum of $1,000.
Error assigned was entering judgment in favor of plaintiff.
Opinion by Willard, J., December 7, 1896:
On a careful consideration of the will of Frederick Schuldt it is evident that the testator intended to dispose of all his property and leave none of it to be distributed under the intestate laws of the commonwealth. Such intent, and that only, can be deduced from the entire will without violating the rule laid down by our Supreme Court in Rolland v. Miller, 100 Pa. 47, and Miller’s Appeal, 113 Pa. 459.
By the second item of the will all of the income of the property mentioned, including 815^ Cherry street, is specifically devised to Edward Schuldt. Considering the language used in the first part of this item without reference to that which follows in the same clause, a fee was vested in Edward Schuldt; for it is settled beyond controversy that a devise of the income passes the land itself: Drusadow v. Wilde, 63 Pa. 172..
The act of April 8, 1833, is not without force in determining the question before us. It provides that “ All devises of real estate shall pass the whole estate of the testator in the premises devised — unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.”
There is no devise over, nor are there, in our opinion, sufficient words of' limitation to change an intended fee simple estate to one for life only.
Bearing in mind then the well established rules, 1st, that “ it never is presumed that a testator intended to die intestate as to any part of his estate, if a contrary intent can be fairly deduced from the language of his will; ” 2d, that a devise of the rents and profits, or of the income passes the land itself; 3d, that by the provisions of the act of April 8, 1833, “all devises of real estate pass the whole estate of the testator in the
A deed was duly tendered to the latter, who refused to pay
“ And now, September 18,1882, after argument and upon con-, sideration, the court being of the opinion that the law is with the plaintiff, judgment is entered upon the case stated in favor of plaintiff for one hundred and sixty dollars ($160) and costs of the-suit.”
The judgment was affirmed in the Supreme Court by a per curiam opinion.
In view of the foregoing authorities and the evident intention of the testator to vest in his son Edward a fee simple estate to the land in question, and upon the able opinion of the learned judge in the court below, the judgment is affirmed.