Appeal of Wentz , 1884 Pa. LEXIS 191 ( 1884 )

Mr. Justice Gordon

delivered the opinion of the court,

Silas H. Wentz, by his will, directed his executors to collect and pay over all the income arising from his estate, real and personal, to his wife during her life or «widowhood. Under this direction we fail to see in what particular the distribution in the court below was wrong. The rents or royalties from the coal leases were undoubtedly “ income ” arising from the realty. Had the mines been opened in the lifetime of the testator there could be no question but that they might have been worked even to exhaustion for the benefit of the life tenant. But as the testator confers upon his executors a general power to lease, as well as sell, his real estate, we must regard the mines opened under this power in the same light as though opened in his lifetime, for the manifest intention was that in this manner an income should be derived from the laud, and, by the express terms of the will, such income must go to the widow during her life or widowhood. It is true, power is not given in terms to lease the coal, but we take it that such power is found in the general direction to lease the coal property. This land was useful as coal land, and for nothing else; the surface could not be rented, hence the power to lease must refer to the minerals or to nothing. Moreover, Wentz owned but one third of this property in common with John Gilbert and the heirs of John Rorer, who owned the remaining two thirds, and the testator must have known that his co-tenants would naturally be disposed either to sell the land or to use it in such a way as to make it the most profitable, which would be leasing or working the coal. Under these circumstances we cannot entertain the belief that Wentz intended that his executors should be limited to the leasing of a barren waste surface which could afford little or nothing in the wav of rent for the support of his wife and minor children. With these remarks we might dismiss this appeal, were it not that the appellants, who represent the estate of Thomas H. Wentz, deceased, insist that the effect of the decree, as made in the court below, is to defeat the limitation over, found in the will under consideration, to their said decedent,. We are not prepared to say that the decree referred to would have this effect, since it involves but a distribution of income only, and therefore could not affect the final disposition of the estate. As, however, one of the reasons given by the Auditor and Orphans’ Court, in support of the decree, is that the fee to the entire property vested absolutely in Mrs. Kate G. Schell, née Wentz, to the exclusion of Thomas H. Wentz, it may be well to dispose finally of this branch of the case. We are inclined to think with the learned Auditor, that the devise to Kate was in fee, subject to be defeated only on the condition that she should die without issue. Indeed, we do not see how otherwise the cross limitation to her brother Howard could have been supported had the condition occurred on which it was to take effect. He certainly could not, at her death, be substituted to “her share ” if she had but a life estate; there would be literally nothing left for him to take. But the fourth clause of the will does undoubtedly put a fee in both the children therein mentioned, and we cannot, under the Act of 1833, cut it down to a life estate as to either unless it appears from .the context of the will that such was the testator’s intention. In looking over that instrument, from the beginning to the end thereof, we can discover nothing that would tend to essentially modify what is expressed in the clause just mentioned. Nor can we agree that the trust was created for the preservation of the principal of the estate for the daughter’s surviving children, or in default of such, for the testator’s son or brother. This assumes, without foundation, a life estate only in Mrs. Schell, with contingent remainders over to the survivor or survivors. To a construction of this kind we cannot assent, because, as we have seen, it does not agree with the expressed intention' of the testator. The limitations are not of remainders but of substituted fees. As the conditions occur, the devisees, one after the other, take just that estate, anti none other, which was held by his or her predecessor, and when Thomas H. Wentz is reached he takes, if at all, the fee passed by the fourth clause of the will to his nephew and niece, differing in this only, that when it reaches him it is unconditioned.

The fact being thus established that there is in Mrs. Schell a conditional fee, the idea of a remainder or merely alternative limitation to Thomas H. Wentz cannot be entertained, and it only remains to ascertain whether there is yet in him such an interest in the devised estate as would authorize his intervention in the present contention. The materiality of the position here established will be obvious if we but reflect that, admitting but a life estate in Mrs. Schell, her brother being now dead, and the cross remainder to him thus extinguished, in the event of her death without issue, that part of the estate charged with the trust for her life must necessarily go over to Thomas H. Wentz, because there would then be none other in whom it could possibly vest. On the other hand, there being in her a conditional fee, if events so occur that a strict performance of the condition, upon which her uncle’s estate depends, becomes impossible, the fee must become absolute in the first taker, and the limitation over necessarily fails. Now, an examination of the will shows us that Thomas H. Wentz was to be substituted, if at all, to the entire estate, and not part of it. But in order that this should happen the daughter must die without issue during the life of the son, and before he reached the age of twenty-one, thus vesting the entire estate, sub conditioner in the sou, and he, in turn, must also die before reaching that age; or, on the other hand, the estate must vest, in like manner, in the daughter, by the death of her brother before the age of twenty-one. and without issue, otherwise the subsequent limitation must fail.

The above proposition becomes obvious when we reflect that the limitation to Howard must, by the terms of the will, become absolute at the period above stated, and if after that time he should take under the cross limitation, as upon it no condition was imposed, he would of course have vested in him the whole property absolutely, and nothing would be left for his uncle. But as matters have turned out, the conditions contemplated by the testator under which the whole estate might ultimately vest in his brother have become impossible.

Howard lived until he reached the age of twenty-one, lienee the limitation to him became absolute, and as he died since that period, his estate has passed to his sister as his heir at law, and not under the will. It is, indeed, contended that Kate’s share still continues subject to the conditions originally imposed upon it, and may yet go over to her uncle should she die without children. But we are not disposed to take this view of the case, for we will not depart from the letter of the will in order to execute a condition which will despoil the favored legatee of a vested estate. Mixed conditions of this kind are not favored, and for this Chancellor Kent gives as a reason that they tend to destroy estates, and therefore must he construed strictly. So it is said in Smith’s work on “Executory)- Interests,” sec. 688, that where the vesting of an interest depends upon a condition precedent or mixed, and such condition is not exactly fulfilled, the interest which is to arise therefrom, if not merely alternative in its character, fails ■ altogether. And if such interest was to arise by way of conditional limitation, in defeasance of a prior interest, such prior interest then becomes absolute and indefeasible, and this because an interest subject to be defeated by a condition subsequent, must as of course, become absolute when the fulfilment of the condition becomes impossible. Row, it may he, as above contended, that it was the testator’s intention to limit a moiety of his estate to his brother should his daughter Kate die childless, but, as was said in Holmes v. Cradock, 3 Yes., 317, that intention is not sufficiently expressed to enable us to execute it. We cannot make a new will for the testator, and if he has not furnished us with the elements necessary to execute an apparent intention, we must leave it unexecuted, and we do this the more willingly in that it operates to vest the precedent limitation in the child and sole heir of the testator.

The decree of the court below is affirmed at the cost of the appellants.