Kepple's Appeal , 1866 Pa. LEXIS 192 ( 1866 )

The opinion of the court was delivered, by

Strong, J.

We are of opinion that under the will of his father Anthony Pifer took an estate in fee simple in the tract of land which he agreed to sell to the appellant. The devise was to him in trust, and for the use of his heirs at law, to have and to hold the same during his natural life, and to receive the rents, issues and profits so long as he might live ; followed by a prohibition against alienation during his life. The next succeeding clause in the will manifests a clear intention that he should have the possession of the property, and provide for the support of his mother upon it. This is a gift of an estate for life, with a remainder in fee to the heirs at law of the devisee for life. It matters not whether it was legal or equitable. If legal, so was the estate of those directed to take in contingent remainder; if equitable, the remainder was the same. Both estates therefore united, and made a fee in the first taker. The attempted restraint upon alienation is inoperative, it being beyond the power of a devisor after having created a fee simple to make it inalienable. It follows that a deed from Anthony Pifer, and his mother Catharine Pifer, will convey a perfect title, a fee simple estate in the land clear of encumbrance. The decree of the court below was therefore correct.

Decree of the Court of Common Pleas affirmed, with costs.