Taylor v. Bell

• Decision Date: 30 December 1893
• Docket Number: 256
• Citation: 158 Pa. 651,28 A. 208
• Parties: Taylor v. Bell, Appellant
• Court: Pennsylvania Supreme Court

28 A. 208

158 Pa. 651

Taylor v. Bell, Appellant

No. 256

Supreme Court of Pennsylvania

December 30, 1893

Argued October 18, 1893

Appeal, No. 256, Oct. T., 1893, by defendant, John T. Bell from judgment of C.P. Indiana Co., Sept. T., 1893, No. 146 on case stated, for plaintiff, Sarah J. Taylor.

Case stated to determine marketable title to land agreed to be sold by plaintiff to defendant. Before WHITE, P.J.

The will after providing for payment of debts out of estates was as follows:

"To my beloved mother Sarah Taylor in lieu of all my indebtedness to her shall be paid as soon as possible after my decease the sum of one thousand dollars. To my daughter Alice my pasture lot situate in the borough of Indiana east of the Armagh road, adjoined by lots of Jno. B. Allison and others containing about two and one third acres being the same piece of ground purchased by me from the late Hon. Thomas White to be kept by her till she reaches the age of 21 years after which time she may dispose of it as she may deem best. To my beloved wife I allow the use as she may deem best the residue of my estate for her own advantage and at her death if any of it remain to be equally divided between my three children, Alexander, John and Alice. If it be necessary to pay my debts and the amount devised to my mother that my real estate will need to be sold, that that is devised to Alice shall be reserved for her. I appoint my wife Sarah J. Taylor, executor of this my last will and testament."

The court below entered judgment for plaintiff, citing: Act of April 8, 1883, P.L. 316; Shirley v. Postlethwaite, 72 Pa. 39; Morrison v. Semple, 6 Bin. 94; France's Est., 75 Pa. 224; Millard's Ap., 87 Pa. 457; Myers' Ap., 49 Pa. 114; Smith v. Snow, 123 Mass. 323; Pennock's Est., 20 Pa. 277; Jauretche v. Proctor, 48 Pa. 471.

Error assigned was entry of judgment as above.

The judgment is reversed, and judgment is now entered under the case stated in favor of the defendant with costs.

J. N. Banks, for appellant, cited: Act of April 8, 1833, P.L. 316; France's Est., 75 Pa. 220; Hinkle's Ap., 116 Pa. 490; Cox v. Sims, 125 Pa. 522; Follweiler's Ap., 102 Pa. 581; Seibert v. Wise, 70 Pa. 147; Mutter's Estate, 38 Pa. 314; Boyle v. Boyle, 152 Pa. 108.

D. B. Taylor, S. M. Jack with him, for appellee, cited: Church v. Disbrow, 52 Pa. 223; Boyle v. Boyle, 152 Pa. 108; Follweiler's Ap., 102 Pa. 581; Cox v. Rogers, 77 Pa. 160; Jauretche v. Proctor, 48 Pa. 466; 2 Jarman on Wills, 5 Am. ed. 529.

Before GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE GREEN:

The clause in the will of Robert C. Taylor under which his widow, the present plaintiff, claims title, is in these words, "To my beloved wife I allow the use as she may deem best the residue of my estate for her own advantage and at her death if any of it remain to be equally divided between my three children, Alexander, John and Alice."

Upon a careful examination of the rather numerous decisions upon this class of cases, we feel constrained to differ with the learned judge of the court below, and to hold that the interpretation of this will is controlled by our rulings in Follweiler's Appeal, 102 Pa. 581, which it closely resembles; Cox v. Sims, 125 Pa. 522, and cases kindred to them. In Follweiler's Appeal the residuary clause of the will gave the whole residue of the estate to the widow, "to keep and enjoy during her lifetime, and after her death what shall be left shall be divided equally my heirs and her heirs, share and share alike." The right "to keep and enjoy during her lifetime" and the right "to use as she may deem best for her own advantage," terminable at her death, are practically identical in any legal sense, as they are in a merely physical sense. We can see no difference between them in considering what was the character of these two defined rights in these two cases. In all other respects these two testamentary grants are precisely alike. There was no power of alienation or testamentary disposal conferred upon the widow in either case. There was an express limitation over in both cases, and the devisees in remainder in both take their title directly from the testator under the same will, and the same clause of the will, in each case, which creates the life interest of the widow. So far as any implication of a fee in the widow arises out of the grant of the right to "keep and enjoy" in the one case, and "to use as she may deem best for her own advantage" in the other, there is no difference. Both these rights end with the life of the widow, the one, by express limitation "during her lifetime" and the other by the devise over "at her death" to designated devisees. In the Follweiler case the ultimate words were, "and after her death what shall be left shall be divided equally, my heirs and her heirs, share and share alike." In the present case these words are, "and at her death if any of it remain, to be equally divided between my three children, Alexander, John and Alice." No larger implication, as to the estate of the widow, arises in the one case than in the other. We think, clearly the two cases are precisely similar in all essential particulars. In delivering the opinion in the Follweiler case, Mr. Justice TRUNKEY said: "Primarily the land is given to her 'to keep and enjoy during her lifetime.' The will works no conversion. The executors are not authorized to sell the land under any circumstances; and no power to dispose of it is given to the life tenant. After her death it is given to the testator's heirs and his wife's heirs, share and share alike, and as already remarked the heirs of each are collateral. . . . No case has been cited by the able counsel for the...