DocketNumber: Appeal, No. 45
Citation Numbers: 51 Pa. Super. 260
Judges: Beaver, Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 7/18/1912
Status: Precedential
Modified Date: 9/9/2022
Opinion by
The plaintiff brought this action to recover the amount of certain rents, accruing from the property No. 538 Chestnut street, Columbia, Lancaster county, which defendants had collected, and to which plaintiff asserts she was entitled. The parties agreed upon a case stated in the court below, from which it appears that the right of the plaintiff is dependent upon whether she took a life estate in the property under the will of John Palm, deceased, the husband of the plaintiff and father of the defendants; the material provisions of which will are as follows, namely: "Second. — I give, devise and bequeath. unto my wife Margaret as a life estate in 131 N. 7th St., Columbia, Pa. but not all all my estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease. The personal property to my wife Margaret as a life estate to receive all rents, issues and profits from 131 N. 7th St., Columbia, Pa. My wife Margaret to pay all taxes, insurance and repairs from rentals, but shall have no power to sell or give away. My property not to be sold until one year after my decease. All the rest, residue and remainder of my property, real, personal and
The contention of the plaintiff, which was sustained by the court below, is that under the provisions of the will above quoted she took a life estate in the property No. 538 Chestnut street, by necessary implication. The purpose in construing a will is to ascertain the intention of the testator, as disclosed by the words he has used to express that intention, so that it may be carried out in the disposition which he has made of his property. All mere technical rules of construction must give way to the plainly expressed intent of the testator: Bruckman’s Est., 195 Pa. 363; Boies’ Est., 177 Pa. 190; Wood v. Schoen, 216 Pa. 425. When land is devised to the devisor’s heir, after the death of A, the latter will take an estate for life by necessary implication. The cases which sustain this principle are ruled on the presumed intention of the testator to postpone the heir. But a devise by implication is sustained only upon the principle of carrying into effect the intention of the testator, and such intention must appear from an examination of the whole will: Dale v. Dale, 13 Pa. 446; Kraemer v. Safe Deposit Co., 1 Pa. Superior Ct. 4.
The clause of the will devising and bequeathing the residue of the estate, above quoted, “wherever situated after the death of my wife Margaret Palm” to the surviving children of the testator, would have vested in the plaintiff a life estate in the property unless some other provision of the will disclosed that such was not the intention of the testator. The difficulty with the position of the plaintiff is that the testator had in the second clause
The express anterior devise to the plaintiff for life of a part only of the lands, being in terms which negative any intention that she should take a life estate by implication in the remaining real estate, under the clause disposing of the residue, the words “after the death of my wife Margaret Palm” appearing in the clause disposing of that residue call for a distributive construction, and are to be applied exclusively to the property expressly devised to the plaintiff for fife: 2 Jarman on Wills, 116; Cook v. Gerrard, 1 Saunders, 180; Annandale v. Brazier, 5 B. & Ald. 24; Sympson v. Hornsby, Prec. Ch 439, s. c., Hutton v. Simpson, 2 Vern. 722; Rathbone v. Dyckman, 3 Paige, Ch. 9. The children of the testator were, under the terms of his will, entitled to the immediate possession and enjoyment of the house No. 538 Chestnut street, Columbia, and are entitled to retain the rents thereof now in their hands.
The judgment is reversed and judgment is now entered for the defendants.