McCalla's Estate

• Court: Pennsylvania Superior Court
• Writing for the Court: Per Curiam
• Citation: McCalla's Estate, 16 Pa.Super. 202 (Pa. Super. Ct. 1901)
• Decision Date: 22 January 1901
• Docket Number: 210-1900
• Parties: McCalla's Estate

16 Pa.Super. 202

McCalla's Estate

No. 210-1900

Superior Court of Pennsylvania

January 22, 1901

Argued December 13, 1900 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by William A. Homan and Morris L. Barr, executors, from decree of O. C. Lancaster Co., directing executors to deliver possession of real estate, in the estate of Amanda K. McCalla, deceased.

Petition for an order on executors to deliver possession of a house.

The case was heard on petition and answer.

Livingston, P. J., filed the following opinion:

In and by her last will and testament, bearing date September 8, 1899, duly proved and now remaining on file, and of record in the office of the register of wills of Lancaster county, __ Pa. __, in will book N., vol. 2, page 383, under which letters testamentary on said estate were duly granted to Morris Barr and William A. Homan on December 6, 1899, Luther Barr, the other executor named, having renounced, Amanda K. McCalla says, inter alia: " My Millersville property I leave for a home to Mrs. Thaddeus Dickey and husband during their lives, they paying taxes and keeping up repairs on the part which has been occupied by me." " If they fail in the obligation, they must leave, and the property be rented, and said rental applied to repairs, taxes, etc.; and after the executors are paid for their care, the remainder to be given Susan Orten and her daughter Mamie." On March 5, 1900, Sue E. Dickey and her husband, Thaddeus S. Dickey, by their counsel, Messrs. Coyle & Keller, presented to the orphans' court of the county of Lancaster, __ Pa. __, their petition, stating that Amanda K. McCalla, in and by her will, provided as follows, viz: " My Millersville property I leave for a home to Mrs. Thaddeus Dickey and husband during their lives, they paying taxes and keeping up repairs on the part which has been occupied by me." " If they fail in the obligation, they must leave, and the property be rented, and said rental applied to repairs, taxes, etc.; and after the executors are paid for their care, the remainder be given Susan Orten and her daughter Mamie." " The house occupied by Cyrus Smith I leave for a home during the life of Lizzie Manning, my faithful helper and companion, she paying taxes and keeping up repairs during her life." " My executors shall pay collateral tax on all the property. The alley is an entrance to the lot on the property on which I live. The insurance on said property shall be paid by my executors. At the death of Lizzie Manning and Mrs. Dickey and husband, the property shall be sold and the money divided between the children of my sisters and brothers (excluding Mrs. May Barr Gardner), they sharing and sharing alike, or their offspring. Sister Emma shall invest in real estate all money inherited through me, and it is to be held in trust for her children. Should Lizzie Manning die before Mrs. and Mr. Dickey, they shall receive the rental from the house, paying taxes and keeping up repairs."

That under the said will the petitioners are entitled to a life interest in the Millersville property, above referred to, during their lives and the life of the survivor, upon condition that they pay the taxes and keep up the repairs on the part which had been occupied by the said Mrs. McCalla.

That the petitioners have made demand upon the said executors to give possession of the said Millersville property, devised to the petitioners for their lives, as above stated, to them, and to deliver up to them the key therefor, and to deliver up to them the said premises. And they have refused so to do, and still refuse.

Upon this petition a rule was granted by the court to show cause why the said executors should not deliver to the petitioners, Sue E. Dickey and Thaddeus S. Dickey, the premises devised, as above stated, to them for their lives and the life of the survivor of them.

To the said petition of Thaddeus S. Dickey and wife, the executors filed an answer in which they, among other things, say: " We admit the portion of the will of testatrix relating to her Millersville property is correctly quoted in the petition filed. The said Millersville property consists of a double dwelling house and lot of ground, the west end of which was occupied by Mrs. McCalla during her lifetime as a dwelling house, and the east end by Cyrus Smith. That they are advised that the petitioners have no present interest in any of said property except the part lately occupied by Mrs. McCalla, as Lizzie Manning, to whom a life interest was given in the eastern portion, is still living. That they are advised that the petitioners are not entitled to the possession of said house, unless they occupy and continue to live in it themselves. That they nowhere in their petition express any purpose to occupy the house for a home, and have not expressed any such purpose to the executors, but, on the contrary, have claimed the right of possession generally, and the right to rent it or live in it as they see fit. That they are advised that in case the petitioners do not live in the premises and occupy them for a home, the will imposes on them as executors the duty of caring for and renting the property, 'and after the executors are paid for their care, the remainder to be given Susan Orten and her daughter Mamie.' That they have been notified by Susan Orten that in the event of the petitioners not occupying said premises as a home, she claims to be entitled to the income, and will require the net rental from the hands of the executors. They are therefore advised that they could not safely give possession of the premises to Mrs. Thaddeus Dickey and her husband except for the purpose of a home for themselves. They, therefore, pray that the petition may be dismissed at the costs of the petitioners."

Thus stands the case as presented. The whole question raised by the present proceeding appears to be whether or not Mrs. and Mr. Thaddeus S. Dickey are entitled to have possession of the property devised to them, for their lives, by Mrs. Amanda McCalla for a home, without their first furnishing evidence to or satisfying the executors of her will that they will immediately proceed to move into said house, and continue to live therein, and use it as their dwelling house, during the remainder of their joint lives and the life of the survivor of them.

Are the words " for a home" used in said devise not merely explanatory of the devise, or do they express a condition or limitation without the happening of which no estate passes to Mrs. and Mr. Dickey?

In order to give this clause the effect which the respondents claim for it, the words " for a home" must make a condition or limitation. An estate upon condition is such whose existence depends upon the happening, or not happening, of some uncertain event whereby the estate may be either originally created or enlarged, or finally defeated: 2 Blackstone, 152.

A limitation is where an estate is so expressly confined and limited by the terms of its creation that it cannot endure for any longer than till the contingency happens upon which the estate is to fail.

A condition is generally expressed by using appropriate words, as " on condition that," or " provided that." " They paying rent," etc.

A limitation is usually expressed by the use of phrases of a different character, as " until a certain time," " during such a time," " so long as," etc.

As both estates upon condition and upon limitation are in derogation of vested estates and interests, they are to be construed strictly, and are never held to be such, except where the intent to create them is clearly expressed. In Chew's Appeal, 45 Pa. 228, it was held, that conditions which work forfeitures are not favorites of the law, and to make a provision such, it must be manifested by a clear expression of intention.

We find no clear expression of such intention in the will under consideration. The only condition the testatrix apparently intended to place upon the devise to Mrs. and Mr. Dickey, was the condition she did put upon it and which is clearly and plainly expressed, to wit: " They paying taxes and keeping up repairs on the part which has been occupied by me." That is the condition. If they fail to fulfil that obligation, that condition, they must leave, that is, give up the possession and the property be rented and said rental applied to repairs, taxes, etc. Then and in such case, after the executors are paid for their care, the remainder is to be given to Susan Orten and her daughter Mamie, but so long as Mrs. Dickey and her husband or the survivor of them live and " pay the taxes, and keep up the repairs," they cannot be deprived of the possession of the property devised to them. The words " for a home," are not followed by the word " only" or " for no other purpose," as in Kirk v. King, 3 Pa. 436, Scheetz v. Fitzwater, 5 Pa. 126, Henderson v. Hunter, 59 Pa. 335, Slegel v. Lauer, 148 Pa. 236, and other cases we might cite where the words clearly expressed a condition or limitation and could not be construed in any other way without doing violence to the will of the grantor or testator. Here no such appropriate words are present. The words " for a home," are either expressive of a purpose for which she recommended and desired the property to be used, or are explanatory of her bounty. In either case they do not amount to a condition, and are not sufficient to defeat the gift or devise or prevent it from vesting in the devisees.

In Wilkes-Barre v. Wyoming Society, 134 Pa. 616, it was held, that the mere statement in a statute, that a lot was to be conveyed " for a Hall," imposed no condition upon the title; the society could use it for other purposes.

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