Little's Estate

Argued April 26, 1927. By the third paragraph of his will, the testator devised as follows: "That two-story brick dwelling known as fifteen forty-eight (1548) Webster Avenue to go to my wife's niece, Mary Jane Moyes, her or her heirs." By the fourth paragraph of the will, he devised the two-story brick dwelling known as fifteen forty-six Webster Avenue and a two-story brick dwelling known as No. 4 Vine Street to his wife's niece, Elizabeth Little Moyes. The fifth paragraph of the will is in the following language: "Should Mary Jane Moyes die without issue, the property left to her is to go to her sister, Elizabeth Little Moyes, but if Mary Jane Moyes should live to be old without issue, she could dispose of the property for her maintenance in her old age." That the third paragraph vested a fee in the devisee is clear. It is equally clear that the words "die without issue" standing alone are referable to the demise of the testator: Seewald's Estate,281 Pa. 483. It is to be observed too that Mary Jane was invested with power to dispose of the property for her maintenance in her old age without devise or bequest over. That the primary and controlling intent of the testator was to create a fee in favor of Mary Jane is reasonably clear. She was the first object of his bounty and stood equally near to him with Elizabeth. Perhaps with some misapprehension of the law, he added the clause relating to the sale of the property, but this should be considered as a secondary intent. We are not required to hold that by the words in question the testator intended to give a smaller estate than that arising from the meaning of the words of the gift standing alone. They may have been intended to subject the estate given to restraint, but this would not be effective to deprive it of the attributes given by law. The language authorizing the devisee to sell the property for her maintenance in her old age is advice or suggestion rather than a legal restriction on the power of disposal.

If the language of the will be not clear, its construction should be in favor of the first rather than the second taker; of a general or primary intent rather than of a particular or secondary one, and doubts as to the quantum of the estate should be resolved in her favor: Jackson's Estate, 179 Pa. 77; Fidelity Trust Co. v. Bobloski, 228 Pa. 52. Whether the devise is clear or doubtful therefore the order of the Orphans' Court rests on a proper construction of it. It is therefore affirmed at the cost of the appellant.