McDevitt's Appeal

Mr. Chief Justice Meectj.es delivered the opinion of the court. Section 9 of the Act of 8th April, 1833, declares, “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over or by words of limitation or otherwise, in the will, that the testator intended to devise a less estate.” The present contention is, whether Eli T. Derrick, took a fee in the real estate of his father Richard Derrick, under tiro will of the latter? The clause under which it is claimed Eli took a fee, contains no words of inheritance. It is therefore by implication only that it can be claimed he took a fee : France’s Appeal, 75 Pa. St., 220. In arriving at the intent of the testator we must seek to give effect to every part of the will and give harmony to the whole instrument. Turning then to the language of the testator, he declares all the share of his property which his sou Eli will be entitled to under the provisions of the will, shall “be retained by my son George as trustee for said Eli during the natural life of said Eli,” and I direct that the interest thereof be annually paid to Eli and after his death, his share to be equally divided among his children, if he should have any or to their issue, the issue in all cases taking the share which their parent would have taken.” Eli died intestate unmarried and without leaving children or any descendants. The court decreed the fund to the administrator of Eli. In this we think it erred. The legacy was not vested in Eli. A trust was created and George was made the trustee of the whole fund. The corpus thereof was never to be paid to Eli, nor to any person to be designated by him. His whole right under the devise was limited to the receipt of the interest thereon. This he was to receive from the hand of the trustee. It therefore clearly appears that the testator by words of limitation in the will, intended to devise to Eli an estate less than one of inheritance. Decree reversed at the costs of the appellee, and record remanded with instructions to make distributions to the heirs and devisees of Richard Derrick, entitled to the fund.