Bailey v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.

Opinion by Me. Chief Justice Mitchell, When testator, who was' a lawyer ajid knew the meaning of [47] technical words, gave, bequeathed and devised all his property to his wife and her heirs forever, he certainly gave her a fee in the land, and the question here is how far did he limit or lessen that estate by the words, “ with this condition, that if she shall die before our son Reade, I give, bequeath and devise to him and his heirs forever the one half of all the property before mentioned, as it may then be.” Conceding that the gift over to the son if absolute might be good as an executory devise of one half the estate, we are still confronted with the words, “ as it may then be.” It is manifest that the testator contemplated the probability that the estate might not then be as he left it, and meant to provide for that contingency. It is not reasonable to suppose that he meant to refer to inevitable or involuntary changes in condition or value by fire or other accident, or change in the character of the neighborhood, for any disposition he could make would necessarily be subject to such contingencies, but rather to voluntary and intentional change by acts of ownership, and as he gave this power without limit he included the power to change by sale. His full intent may therefore be served by construing this provision to give his widow the control of the estate during her life, but with a restriction against devising more than one half of it away from her son. How far such a restriction upon an estate in fee may be good even as an executory devise we need not now consider. The argument that the restricting words “ as it may then be ” should be confined to the personal estate is not tenable. In most of the cases cited, such as Follweiler’s App., 102 Pa. 581, and Cox v. Sims, 125 Pa. 522, the estate given was only for life, and it was held that the power to consume incident to the enjoyment of the gift did not extend to the realty. In Trout v. Rominger, 198 Pa. 91, the gist of the decision was that the change of the investment by the sale of one piece of land and the purchase of another with the proceeds, was not such a consumption by the widow as to defeat the testator’s devise to his children of “ any of the above bequeathed property (which) should remain at the date of my wife’s death.” In the present case the testator classes all his estate, real and personal together and bequeaths and devises the whole absolutely and in fee. As the deed from the widow will convey a good-title, it is [48] not necessary to consider the question of estoppel as to the son by his executing the deed as attorney in fact» Judgment affirmed.