179 Pa. 381 | Pa. | 1897
Opinion by
The refusal of the. insured to comply with the condition in the policy in regard to the appointment of appraisers to ascertain the amount of the loss in case of a disagreement concern
Another defense to the action is that the interest of the insured in the property destroyed was “other than unconditional and sole ownership,” and this depends on the construction of the will by which he acquired title to it. The property destroyed was a dwelling house included in the devise by David McKee of his homestead to John D. McKee “to be his forever for his own proper use,” subject only to a restriction of alienation until he attained the age of thirty years, which in his case was for the period of thirteen years. In Jauretche v. Proctor, 48 Pa. 466, Woodward, C. J., said: “A partial restriction, such as not to alien to a particular person or for a limited time, may be supported, but a general restraint of alienation when annexed to an absolute estate is void, upon the familiar principle that conditions repugnant to the estate to which they are annexed bind not.” This is in accord with the view expressed by Tilghman, C. J., in McWilliams v. Nisly, 2 S. & R. 507, and by Coulter, J., in McCullough v. Gilmore, 11 Pa. 870. It is said in 6 Am. & Eng. Ency. of Law, p. 877, note 4, that “ the weight of authority seems to be against such restraints however limited as to time.” The ground on which a partial
It is'contended however that if the insured by the devise to him of the homestead acquired an estate in fee simple it was by another provision of the will, defeasible on his death under thirty years of age without issue. The provision referred to is preceded by the devise of the homestead, by gifts of annuities to the brothers, sisters, and children of the testator, and by the appointment of executors. It is as follows: “ On the death of my heirs herein named all property and bank stock to be sold and divided among all the heirs should my grandson John D. McKee die before he is thirty without leaving any heirs his estate to be divided pro rata among the heirs.” We have quoted it entire and as it was written. It is quite clear that by “ my heirs herein named ” the testator meant the annuitants, and that “all the heirs” included John D. McKee. It is also obvious that “ all property and bank stocks ” did not include the homestead previously devised in fee. The part of the provision which relates to the division of John D. McKee’s estate may be fairly referred to his share of the proceeds of the property previously directed to be sold. , It may be possible to construe it as including the homestead, but it seems to us that this is not the reasonable interpretation of it. “ The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced main inten
Judgment affirmed.