Citation Numbers: 188 A. 144, 324 Pa. 177
Judges: OPINION BY MR. CHIEF JUSTICE KEPHART, November 23, 1936:
Filed Date: 9/30/1936
Status: Precedential
Modified Date: 1/13/2023
Argued September 30, 1936. The County Trust Company, a judgment creditor of Lizzie Keturah Trent and Wilson H. Trent, her husband, brought this proceeding to determine whether she took a fee simple in certain real property under the will of her father, Harrison Gohn. By it there was given "to my daughter Lizzie Keturah intermarried with Wilson H. Trent, the property at present occupied by her and . . . the mortgage of twelve hundred dollars . . . against her said husband Wilson H. Trent and herself," together with a certain sum charged upon his coal lands. Testator then provided: "Also: in the event of the death of my daughter Lizzie Keturah before the death *Page 179 of her husband Wilson H. Trent I direct that the property I have devised and bequeathed to her to revert to my two daughters . . . or their heirs, share and share alike." Lizzie Keturah, testator's daughter, survived him but predeceased her husband, who died after the institution of the present proceedings. The lower court decreed that the interest which Lizzie Keturah had in the estate of her parent was conditioned upon her surviving the husband and that, having predeceased him, it became vested in testator's other daughters. This appeal followed.
The case was argued here and apparently in the court below on the theory that the gift over to testator's daughters was an illegal attempt to control the course of descent of a fee simple.
The language employed by testator in making the gift to Lizzie Keturah without more was sufficient to devise to her a fee. The Act of June 7, 1917, P. L. 403, Section 12, is decisive of this question. It is appellant's contention that the clause in the will which provides for a gift over on the contingency of the daughter predeceasing her husband is repugnant to the earlier clause and void because, appellant argues, it shows an intent to control the course of descent of the fee on her death. This court has often held that a devise of a fee cannot be stripped of its legal attributes. InByrne's Estate,
This testator, having set up a condition which was to terminate the estate, provided as to its disposition thereafter. Had the daughter survived her husband, the possibility of the condition occurring having been terminated, her estate would have been absolute. See McCall v. Umbenhauer,
Decree affirmed at appellant's cost.