Fassitt v. Seip , 240 Pa. 406 ( 1913 )

Opinion by

Mr. Justice Elkin,

The rights of the parties to this controversy depend upon the construction to be given the will of Xavier Veile. The fourth clause of this will provides as follows : “All the residue and remainder of My Estate, Real, personal and mixed of whatever Kind, and wheresoever Situate or being, Not Otherwise herein, or hereby disposed of, I give, devise, and bequeath Unto my said wife Theresa, to have Use, and enjoy the Same, in like manner as I myself Could do if living,” In the fifth clause which immediately follows the testator provides: “Whatever of my Said estate, that may remain Unexpended after the decease of My Said wife, I direct to be divided into two equal parts or shares,” the income or profits of one share to be paid to his son Edward annually during his natural life, and at his death the said one equal part or share to be divided equally between the children of Edward share and share alike. The income or profits of the other share to be paid annually to his daughter Isabella during the term of her natural life, and at her death the corpus of the part or share thus set aside for her benefit to be divided among her children share and share alike. It was further provided that should either the son or daughter “die without leaving any children, or the issue of such, then in that case I give the said one equal part or share to the children of the other.”.

It is obvious that the will was not drawn by an apt draftsman, but notwithstanding the inapt use of language, the too frequent use of capital letters and the improper use of punctuation marks, we think the intern tion of the testator clearly appears. The testator evidently intended his wife to have the use and enjoyment of the properties in dispute here “in like manner as I myself Could do if living.” Prior to the Act of April 8, 1833, P. L. 249, a devise did not carry a fee unless it contained words of inheritance or other words showing an intention that a fee should pass. The Act of 1833 changed the rule of construction by providing that the whole estate of the testator devised should pass even if the devise did not contain words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, “that the testator intended to devise a less estate.” In the present case there are no words of inheritance or of perpetuity, and if it were not for the Act of 1833 no one would seriously contend that the wife took an absolute estate. It remains to be determined whether by reason of the Act of 1833 she took a fee simple title. It is expressly provided in this act that where the intention of the testator to devise a less estate clearly appears, such intention must prevail as against the statutory rule that the whole estate passes although there be no words of inheritance or of perpetuity. A devise over and words of limitation are evidence of an intention not to devise the whole estate, and the intention to devise a less estate may “otherwise” appear. It is so provided in the act itself. In the will under consideration there is a devise over and there are other provisions clearly indicating that the testator had in contemplation an “unexpended” balance of his estate at the death of his wife. He directed to whom this unexpended balance should go and how it should be enjoyed. He intended that his wife should have every use and enjoyment of his residuary estate that he himself had while living. If necessary for her comfort and maintenance she could have consumed and expended all of it, and for these purposes could have conveyed a fee simple title to a bona fide purchaser. But this she did not do. She died in possession of the properties and undertook to dispose of them by her will. We, therefore, agree with the conclusion reached by the learned court below that the properties in question are a part of the unexpended remainder of the estate of her husband and passed under his will to the devisees named therein. Not having consumed the residuary estate of her husband in her lifetime the wife could not dispose of it by will. These conclusions find ample support in the following cases: Henninger v. Henninger, 202 Pa. 207; Kennedy v. Pittsburgh, Etc., R. R. Co., 216 Pa. 575; Allen v. Hirlinger, 219 Pa. 56; Briggs v. Caldwell, 236 Pa. 369.

Under the facts of the present case the conveyances ' by the wife to third parties who immediately reconveyed to her does not alter the situation. What was said by Mr. Justice Mitchell in Tyson’s Est., 191 Pa. 218, 226, is applicable here: “The extent of the widow’s consumption of the estate was within her own control. Her decision was without appeal, but it must have been honestly reached in accordance with the purpose the testator intended, and not merely colorably to defeat his will. She had power to carry out his intentions by sale, transfer and consumption of the proceeds in such a way as to leave nothing at her death. But a transfer with in* tent not to consume for herself, but to preserve for others after her death, and to change the beneficiaries after her from those chosen by her husband to others of her own selection would be a fraud on the testator and his will. This is a question of fact to be determined by the court on the circumstances and the evidence in each case as it arises.”

The learned court below found from the facts and circumstances of the case at bar that the conveyances were not made to bona fide purchasers for any of the purposes contemplated by the testator and that the wife held the properties at her death just as they passed to her under the will of her husband. The facts fully warranted the conclusion reached on this branch of the case, and it necessarily follows that the rights of the parties in the present controversy depend as hereinbefore stated on the construction of the will of the testator. In our opinion the learned court below properly construed this will and we find no error in any of the conclusions reached.

These three cases by agreement of the parties were tried together in the court below and only one appeal was taken. The same judgment may be entered in each of the three cases.

Judgment affirmed.