Fidelity Trust Company v. Bobloski

• Decision Date: 18 April 1910
• Docket Number: 63
• Citation: 228 Pa. 52,76 A. 720
• Parties: Fidelity Trust Company, Appellant, v. Bobloski
• Court: Pennsylvania Supreme Court

76 A. 720

228 Pa. 52

Fidelity Trust Company, Appellant, v. Bobloski

No. 63

Supreme Court of Pennsylvania

April 18, 1910

Argued March 23, 1910

Appeal, No. 63, Jan. T., 1910, by plaintiff, from judgment of C.P. No. 5, Phila. Co., Sept. T., 1909, No. 4,596, for defendant on case stated in suit of Fidelity Trust Company Committee of the Estate of Maria Louisa Hoffman, v. Moses Bobloski. Affirmed.

Case stated in amicable action of ejectment. Before MARTIN, P.J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was in entering judgment for defendant on the case stated.

The assignments of error are overruled and the judgment is affirmed.

H Gordon McCouch, with him George S. Munson, for appellant, cited: Redding v. Rice, 171 Pa. 301; Drennan's App., 118 Pa. 176; Kane's Est., 185 Pa. 544; Walker v. Quigg, 6 Watts, 87; Long v. Paul, 127 Pa. 456.

John Marshall Gest, for appellee, cited: Campbell v. Carson, 12 S. & R. 54; Kiefel v. Keppler, 173 Pa. 181; Witmer v. Delone, 225 Pa. 450; Presbyterian Church v. Disbrow, 52 Pa. 219; Lee v. Stephens, 2 Shower, 49; Jackson's Est., 179 Pa. 77; Lloyd v. Jackson, L.R. 1 Q.B. Cases, 571; Pickwell v. Spencer, L.R. 7 Exch. 105; s.c., L.R. 6 Exch. 190; Morrison v. Semple, 6 Binn. 94; Crosky v. Dodds, 87 Pa. 359; Cooper v. Pogue, 92 Pa. 254; Rohrbach v. Sanders, 212 Pa. 636; Koble v. Bennett, 40 Pa.Super. 79; Scott v. Murray, 218 Pa. 186.

Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The only question raised by this appeal concerns the quantum of the estate taken by the widow under the following will: "I. Fully convinced, that my wife Philippina (nee Doll) is able as well as willing, after my decease to instruct and educate our children and to take care and administer our joint property, just as good as if I was still living I wish and direct that my said wife shall take possession and enjoy and administrate for the time that she remains a widow all of my real and personal estate and effects including the shares of the different Building Associations to which I do belong or might hereafter belong, Subject however to the condition that she shall not sell, dispose of or contract any debt or liabilities of and on any of my said Real estate or city loan without the consent of Executors hereinafter named. II. I wish and direct that my said wife shall assist to the best of her ability, our children, when they become of age, to procure the ways and means best adapted for their future welfare and position to secure their own means. III. At and of the event of my said wife again becoming married, all my real and personal estate shall be divided between herself and our children, according to the laws of this commonwealth, and a guardian shall be appointed for such of our children as are then not of age. IV. To assist my wife in the execution of my real and personal estate as well as in the execution of my last will and Testament, I herewith appoint herself, Peter Kohlhas and my brother P. C. Hoffman all of the City of Philadelphia State of Pennsylvania as Executors of and to this my last will and testament." The testator, Jacob Hoffman, died seized of certain real estate. The court below held that the widow took a fee in this real estate defeasible upon her remarriage. The question is not entirely free from doubt, but we are convinced that this is the correct interpretation of the will.

In case of doubt the construction of a will should be in favor of the first rather than of the second taker; of a general or primary intent rather than of a particular or secondary one; and where a devisee is subjected to a charge or burden, doubts as to the quantum of the estate should be resolved in his favor: Jackson's Est., 179 Pa. 77.

The testator refers to the estate as "our joint property," and shows an intention to substitute his wife for himself in relation thereto. She appears the first and principal object of his bounty, and his general or primary intent seems to be to give her the property as he had it, trusting her to take care of their children. His expression of confidence that his wife would educate the children, and his direction that she should assist them when they became of age "to procure the ways and means best adapted for their future welfare and position to secure their own means," tend to demonstrate this primary intent, and go far to show a purpose to give her an estate in fee. It is a well-settled rule that an indefinite devise coupled with a charge on the devisee passes a fee. In Lloyd v. Jackson, L.R. 1 Q.B. Cases, 571; s.c. L.R., 2 Q.B. Cases, 269 (before the Wills act), the testator directed: "I give and bequeath to my beloved wife, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed, all of my children to be educated and settled in business according to my wife's discretion;" and it was held that the language indicated an intention that the wife should take such an estate as would enable her to carry out the wishes of the testator, and that she took an estate in fee. This view was sustained on appeal by the exchequer chamber, L.R. 2 Q.B. Cases, 269; KELLY, Chief Baron, saying: "Whether this duty be obligatory or whether it be discretionary, we are of opinion that the effect of this part of the will is to confer the fee simple and not merely an estate for life." The rule laid down in this English case has always obtained in Pennsylvania: Burkart v. Bucher, 2 Binney, 455; Coane v. Parmentier, 10 Pa. 72; Fahrney v. Holsinger, 65 Pa. 388; Jackson's Est., 179 Pa. 77.

"Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee:" Witmer v Delone, 225 Pa. 450. The present will, by clear implication, gives to the widow the power to sell and dispose of the estate. The executors are expressly appointed "to assist my wife in the execution of my real and personal estate." They are...