Hoxie v. Chamberlain

Opinion by Mr. Justice Potter, The question here presented for consideration is as to the extent of the estate vested in the plaintiff by the will of Otis J. Chubbuck. In the third paragraph of his will-the testator gave to the plaintiff the same .estate whicli she would have taken as his only child and heir at law. It is clear that he intended to give her what amounted to an estate of inheritance. He went on to express a further intent by saying, [33] “ Should the said Mary have no legal issxxe or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest shall revert to and belong to my estate.” It is necessarily implied by these words that the devisee had power to dispose of the property given to her, for the limitation over to the estate of the testator was only to apply to so much of it as “she may die seized of.” There was no limit placed upon her right to dispose of the property at hex-own discretion, and therefore the devise amounted to an unqualified gift. A devise with power to give a fee, passes a fee: Brown’s Est., 38 Pa. 289; Chxirch v. Disbrow, 52 Pa. 219; Witmer v. Delone, 225 Pa. 450. In so far as any subsequent limitation over was inconsistent with the absolute gift already made, it would be void. We agree with the court below that under the will in question the estate devised to the plaintiff in the property described, is a fee simple, and that the deed of herself and husband for the same will convey a good and marketable title thereto. The specifications of error are overrxiled, and the judgment is affirmed.