Wilkinson v. Chambers

181 Pa. 437 | Pa. | 1897

Opinion by

Mr. Justice McCollum:,

Tlie decision, of the question raised by the case stated depends upon the interpretation or construction of the will of John P. Wilkinson, deceased. The question is whether under and by virtue of the will, his wife, Hannah A. Wilkinson, became at his death the owner in fee of the real estate in dispute. The plaintiff claims that the devise to her was of a life estate only, while the defendant as devisee of all her estate claims that it was of the fee. The devise in question is contained in item 2 of the will, and the operative words of it are: “ I give to my wife Hannah A. Wilkinson for a home my one half undivided interest in the real estate on which I now reside.” The description of the real .estate which follows the operative words need not be inserted here. The claim of the plaintiff is based on the presence in the devise of the words “ for a home.” Without these words there would be no room for a contention respecting the nature of the estate devised. Do these words in, the devise have the effect claimed for them ? There is no provision in the will which strengthens the claim founded upon them. The authority given to the executor in item 3 cannot be construed as extending to and including lands specifically devised in items 2 and 5. A construction of it which would enable the executor to defeat specific devises of real estate cannot be sanctioned. The reasonable and proper construction of it is that which limits it to property not specifically disposed of by the will. This construction obviously accords with the intention of the testator in conferring the power to sell or lease.

The claim that the wife took an estate in fee by the devise in item 2 has some support in the fact that there was no devise over. This is not necessarily a controlling fact, but it is entitled to consideration in ascertaining the testator’s intention in disposing of the, land in suit. That he knew how to create s life use of or in his property when he desired to do so clearly appears in item 7 of his will.

The words “for a home” as used in the devise were not sufficient to restrict it to a life estate. They do not qualify in any degree the absolute gift to the wife of all the testator’s interest in the land described in item 2. This view of the case is not opposed to the decision in Oyster v. Oyster, 100 Pa. 538. In that case the testator devised land to his son “ for his support,” and tben over to his children who were to take as purchasers. The only question was whether the word “ children ” in the third clause of the will was a word of limitation or of purchase. It was held to be a word of purchase, and as a sequence that the son took but a life estate in the- land. The third clause of the will, standing alone, evidenced an intention to give a life estate to the son. It was construed as a whole, and the strongest if not the only indication of the intention was the limitation over which was included in it. Oyster v. Knull, 137 Pa. 448, involved the construction of a similar clause of the same will, and the decision in it accords with the decision in the preceding case, and rests upon substantially the same grounds. Upon due consideration of the language of the devise and of all the provisions of the will, we concur in the conclusion of the learned court below “ that Hannah A. Wilkinson took an estate in fee simple in the real estate described in the second item of the will of John P. Wilkinson, deceased.” It follows from this conclusion that judgment was properly entered for the defendant.

Judgment affirmed.