Appeal of Hinkle

Opinion,

Mu. Justice Trunkey :

The residue of the estate is given to the appellant “ to have and to hold the said estate with the rents, issues, and profits thereof during his life, for his own use and profit and enjoyment as he may see fit, giving my said husband full power to sell or dispose of the same during his life as he may desire, hereby giving him full power to convey the same or any part thereof, and make good and sufficient title and conveyances-therefor during his life.” He may give, as he thinks proper, to Frank Whitehill Hinkle, means to start in professional business. He is bound to give said Frank one hundred dollars each year until he shall be in business and able to support himself. And he shall pay to Anna Whitehill fifty dollars each year so long as she remains unmarried. All the estate remaining after the death of Dr. Franklin Hinkle is expressly given to other persons.

The meaning of the devise to the appellant is not doubtful. He is to hold and enjoy the estate during his life; he has full power to sell and dispose of it during his life; and he may make good “ conveyances therefor during his life; ” and the remainder is devised over to persons named. The limitation of Ms estate and powers might have been made in more concise terms, but not more unmistakable. If the fact that Dr. Hinkle is personally liable to pay certain sums of money, or the fact that he is clothed with power to sell or dispose of the estate, gives him the absolute right of property or the estate in fee, the intention of the testatrix is defeated by a rule of law.

It is a settled rule that where a devisee, whose estate is undefined, is directed to pay the testator’s debts or legacies, or a specific sum in gross, he takes an estate in fee : 2 Jarman on Wills *268. This rule is confined to indefinite devises, for where the direction to pay is imposed on a person to whom there is given an express estate for life, or an estate with a gift over after his death, or an estate tail, the charge is-inoperative to enlarge such an estate to a fee simple: Id. *269. The rule was established when a devise of lands, without words of limitation, conferred on the devisee an estate for life only; and to effectuate the intention of testators the court lent a willing ear whenever there was a plausible pretext for an enlargement of the life estate into a fee simple. It was not invented to defeat the obvious intention of testators. In tMs state it has been frequently applied, but no case has been cited where the imposition of a burden upon the acceptor of the devise of a life estate enlarged such estate. It was recognized in Coane v. Parmentier, 10 Penn. St. 72, where the estate was undefined, and the court remarked that the intention to give a fee was clear. So, in Harden v. Hays, 9 Penn. St. 151, the rule was applied; but it was said, “ where there is any express limitation of the interest devised, a direction that the devisee shall pay pecuniary legacies, does not make his interest a fee simple.” These cases are in accord with the numerous decisions touclfing the application of the rule.

A power of sale attached to an express life estate will not enlarge it to a fee. Where a testator devised land to A, “ to her sole and separate use for life,” and gave “ her as executrix, or in her own right as devisee for life, the right to sell and convey in fee simple, all or any part or parts of my real estate at such time or times to such person or persons and for such consideration as she shall deem expedient,” it was decided that the devisee took an estate for life only: Hatfield v. Sohier, 114 Mass. 48. A testator devised all his estate, real and personal, to his wife, “ for her comfortable support and maintenance during her life with full power and authority to dispose of the same as she may find needful for that purpose.” He gave to S. all his estate “ that may remain after the death of his wife.” The widow did not exercise the power to sell, but attempted to dispose of the estate by will to her brother. Held, that the widow only took an estate in the land for life with power to sell, and the devise over to S. took effect: Small v. Snow, 123 Mass. 323.

Where the estate is plainly given for life, with devise over, with power to sell in the life-tenant, there is no reason for defeating the testator’s intention. The life-tenant may or may not exercise the power, but its exercise ought not to enlarge his right in the proceeds of the sale.

The third, fourth and fifth specifications of error are not sustained.

The legacies to the children of James C. Whitehill are payable to them after his decease, and not before. He is entitled, by the terms of the will, to the interest of the money during his life. His transfer of that right to his children entitles them to receive the interest but not to demand the principal until it becomes due and payable. The auditor does not find that the money was awarded directly to the children by agreement of all parties. The father and children so agreed, but there is no evidence of such agreement by the proper custodian of the money during the life of the father. The accrued and unpaid interest, if included in. the transfer, was properly awarded to the children.

The second assignment of error is sustained, and the decree must be modified accordingly.

Decree affirmed, to be modified by the Orphans’ Court as indicated in the foregoing opinion. Appellant to pay costs. Record remitted.