In re Estate of Jackson , 179 Pa. 77 ( 1897 )

Opinion by

Mr. Justice Fell,

In the case of Jessup v. Smuck, 16 Pa. 327, relied on by the appellant, the son whose estate was held to be limited was treated in the will as living at a period subsequent to the death of the testator, and the terms in which the contingency and limitation were expressed were considered as repelling the inference that the testator contemplated the death of the first taker before his own. The principle that the devise of a fee absolute in the first instance cannot be reduced to an estate for life unless the intention to do so is clear is recognized in the opinion, and the case is not in conflict with the rule of construction so often stated in our cases from Biddle’s Estate, 28 Pa. 59 to Mitchell v. P., Ft. W. & C. Ry., 165 Pa. 645, that where the gift is plainly a fee simple to take effect immediately in possession a devise over in case of the death of the first taker means his death in the lifetime of the testator. The decision of the learned judge of the orphans’ court is in harmony with the general rules of construction, and with the act of April 8, 1833, which provides that “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there are no words of inheritance or perpetuity, unless it appeal's by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.” The construction, if it is necessary to resort to the established rules, should be in favor of the first rather than of- the second taker: of an absolute or vested estate rather than of a defeasible or contingent one; of a general or primary intent rather than of a particular or secondary one: Smith’s Appeal, 23 Pa. 9; Etter’s Estate, 23 Pa. 381; Letchworth’s Appeal, 30 Pa. 175; Womrath v. McCormick, 51 Pa. 504.

This construction, we think, gives effect to the actual intent. The real estate devised by the testator to his daughter was worth about $6,200.- The stock on the farm was owned by the son. The testator’s daughter had always lived with him, and for ten years had had sole charge of his house. Her proportion of the charges imposed, the payment of the legacy to another son-and the maintenance and education of the testator’s grandson, amounted to more than the value of a life estate in one half of the farm, and unless this construction be given she takes nothing of value under the provisions of a will certainly intended to be of substantial benefit to her. The implication arising from the words “ what remains ” is that she had an unlimited power of disposal, which is inconsistent with the existence of a valid limitation over. In the first instance he gives her a vested estate unlimited in point of duration, and that the subsequent provisions were meant to become operative only in the event of her death in his lifetime is quite as probable as any other supposition. There is at least no clear evidence of a contrary intent, and the law regards with disfavor conditions subsequent divesting or reducing a vested estate.

The assignments of error are overruled and the order of the orphans’ court is affirmed at the cost of the appellant.