Davenport v. Graham

• Decision Date: 05 January 1942
• Docket Number: 234,235
• Citation: 343 Pa. 497,23 A.2d 482
• Parties: Davenport et al., Appellants, v. Graham
• Court: Pennsylvania Supreme Court

23 A.2d 482

343 Pa. 497

Davenport et al., Appellants, v. Graham

Nos. 234, 235

Supreme Court of Pennsylvania

January 5, 1942

Argued December 1, 1941.

Appeals, Nos. 234 and 235, Jan. T., 1942, from order of C.P Crawford Co., Nov. T., 1940, No. 2, in equity, in case of George S. Davenport, executor, et al. v. Mary T. Graham. Order on decree affirmed.

Bill in equity.

Decree entered dismissing bill, opinion by KENT, P.J. Plaintiffs appealed.

Order or decree affirmed; costs to be paid by appellants.

Thomas P. Johnson, with him Sherman T. Rock, Reed, Smith, Shaw &amp McClay and Gerald D. Prather, for appellants.

Albert L. Thomas, of Thomas & Kiebort, for appellee.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. STERN, JUSTICE.

The will of Jane A. Dickson, who died in 1922, contained four paragraphs; in the first she devised her homestead on North Street, Meadville, to her grandniece Marion Woods Davenport, "to have and to hold the same unto the said Marion Woods Davenport, her heirs and assigns forever, but subject to the provisions of item fourth of this will"; in the second she devised a house and lot to her grand-nephew, George Seiple Davenport, his heirs and assigns, "but subject to the provisions of the fourth item of this my will"; in the third she devised and bequeathed all the rest and residue of her estate to Marion Woods Davenport and George Seiple Davenport, to be divided equally between them. The fourth paragraph was as follows: "In case the said Marion Woods Davenport or the said George Seiple Davenport shall die leaving no issue living at the time of such death, then it is my will that whatever remains of his or her share hereinbefore given and bequeathed shall go to and be divided between Frances M. Appleby, Margaret Ingraham, Mae Adelaide Crummel, and Frank H. Woods, my nieces and nephews." Marion Woods Davenport (by marriage Marion D. Wheeler) died in 1940, leaving no issue. The present question is whether the executor of Marion's estate can convey to a purchaser a fee simple title to the homestead devised to her in Jane A. Dickson's will.

"Where a testator in the first instance uses language suitable to the grant of a fee simple estate, but, by subsequent words, immediately following in the devise, indicates a dominant intent to give only a less estate, the latter purpose will be upheld": Pattin v. Scott, 270 Pa. 49, 51, 112 A. 911, 912; Stanton v. Guest, 285 Pa. 460, 132 A. 529. Since the first paragraph of the will expressly incorporates the fourth paragraph and makes it a part of the terms of the devise, it is clear that the estate given to Marion was subject to an executory devise over to the named nieces and nephews in case Marion should die leaving no surviving issue, and in case also she did not, after the accrual of her title, dispose of the property during her lifetime. As only "whatever remains" (at Marion's death) was to go to the nieces and nephews, Marion had the right to convey (Kennedy v. Pittsburg & Lake Erie R.R. Co., 216 Pa. 575, 65 A. 1102; Allen v. Hirlinger, 219 Pa. 56, 60, 67 A. 907, 908, 909; Fassitt v. Seip, 240 Pa. 406, 411, 87 A. 957, 959; Edwards v. Newland, 271 Pa. 1, 113 A. 742), but, since she failed to exercise that right, she could not dispose of the property by will if the condition occurred which brought the executory devise into effect, she not having, in that event, an absolute fee simple title: Allen v. Hirlinger, 219 Pa. 56, 60, 67 A. 907, 908, 909; Edwards v. Newland, 271 Pa. 1, 4, 113 A. 742, 743; Walker's Estate, 277 Pa. 444, 449, 450, 121 A. 318, 320.

The question is thus reduced to whether the event happened on which the executory devise was conditioned, that is, whether Marion died leaving no surviving issue within the meaning of that provision in the will. Was the death there referred to limited to death within the lifetime of the testatrix? Where an estate in fee simple is devised, but in the event of the death of the donee without issue another devisee is to be substituted, such a provision is generally construed to mean death without issue in the lifetime of the testator, and if the donee survives the testator his interest becomes absolute: Mickley's Appeal, 92 Pa. 514; Seewald's Estate, 281 Pa. 483, 486, 127 A. 63, 64; Lerch's Estate 309 Pa. 23, 28, 159 A. 868, 869; Crawford v. Withrow, 314 Pa. 497, 500, 171 A. 894, 895. But there is a qualification of this rule of construction that it does not apply where the testator discloses an intention to the contrary, as, for example, by treating the first taker as living at a period...