Wetherill v. Lefferts

Opinion by Mr. Chief Justice Brown, The property which is the bone of contention between Isabella M. Lefferts, the sole heir and next of kin of Alexander Stewart Wetherill, and the heirs at law and residuary devisees of John M. Wetherill, the testator, is what he calls in his will his “real estate in Lower Providence Township, Montgomery County.” Mrs. Lefferts contends that Alexander Stewart Wetherill took a fee in the said real estate under the third clause of his uncle’s will, and, having died intestate, the same descended to her as his only heir. The devise of the real estate to Alexander Stewart Wetherill was “for and during the term of his natural life with remainder in fee to his eldest son and his heirs.” The remainder was given to the eldest son of the nephew Alexander, and to the heirs of that son. The inheritance in remainder was not to the heirs of the devisee for life as heirs, and the rule in Shelley’s Case is without application: Guthrie’s App., 37 Pa. 9. The word “son” is primarily a word of purchase, and, there being nothing in the context of the will of the testator indicating any intention on his part to use it as a word of limitation, the correct conclusion of the learned court below was that Alexander Stewart Wetherill took but a life estate in the property: Stout v. Good, 245 Pa. 383. In Wetherill’s Est, 248 Pa. 355, in which the same clause of the will was under consideration, this court construed the words “oldest son,” used in connection with the devise of the real estate to another nephew, in the event of the death of Alexander Stewart Wetherill without leaving a son, to be words of purchase, and held that the substitutionary devisee did not take a fee. On appeal No. 4 to the current term the residuary [493] devisees of the testator question the correctness of the conclusion of the court below that the estate in remainder is vested in his heirs at law, their contention being that, the devise having' failed, it became part of the residuary estate devised to them under the fourth clause of the will. The Act of June 4, 1879, P. L. 88, provides that, “unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable of taking effect, shall be included in the residuary devise, if any, contained in such will.” In claiming the estate in remainder the residuary devisees assume that the fourth clause of the will disposes of all the residuary estate of the testator. This view was not sustained by the learned court below, and we cannot regard it as correct. It is conceded that if the fourth clause of the will is not the residuary clause, the said devise passes to the testator’s heirs at law. By the third clause of his will he disposes of a part of his re.siduary estate, and by the fourth he gives, upon the death of his sister, Mrs. Hewson, to a designated class what he had not specifically devised in the preceding clause. A specific devise in the third clause is of the real estate in controversy. At the time fixed by the testator in the fourth clause for the distribution of the remainder of his residuary estate his real estate in Lower Providence Township, Montgomery County, constituting a part of his residuary estate specifically devised by the third clause, was to pass to a named nephew, if living for life, with remainder to his eldest son; and if such nephew should have died without issue, then to another nephew, with remainder over. What, then, was the manifest intention of the testator as to what should pass under the fourth clause of his will? He clearly in [494] tended that his brothers and sisters living at the time of Mrs. Hewson’s death should take, at the time fixed by him for the final distribution of his estate, what was left after the provisions of the third clause of his will had been carried out, and nothing more. He manifestly did not intend that what he had directed Francis I). Wetherill, as trustee, to convey to his nephew, Alexander Stewárt Wetherill, upon the death of Mrs. Hewson, should ever become a part of his residuary estate, disposed of by the fourth clause of his will. Nothing was given by it to the brothers and sisters except what was distributable upon the death of Mrs. Hewson, and this could not have included the land in controversy. In view of the clear intention of the testator, as gathered from the third and fourth clauses of his will, the contention of' the residuary devisees, that they take the testator’s farm in Lower Providence Township, Montgomery County, under the fourth clause of the will, cannot be sustained. Aside from the testator’s intention, the void devise having formed a part of his residuary estate, disposed of by the third and fourth clauses of the will, would not fall back into that estate: Gray’s Est., 147 Pa. 67; Wain’s Est., 156 Pa. 194. Each appeal is dismissed and the judgment is affirmed.