Walker and Wife v. Vincent

• Decision Date: 11 October 1852
• Citation: 19 Pa. 369
• Parties: Walker and Wife <I>versus</I> Vincent.
• Court: Pennsylvania Supreme Court

19 Pa. 369

Walker and Wife versus Vincent.

Supreme Court of Pennsylvania.

October 11, 1852.

ERROR to the Common Pleas of Erie county.

Marshall, for plaintiff in error.—It is a general rule, when a deed or devise creates an estate in fee-simple or fee-tail, any subsequent

expression in the instrument narrowing the estate, is void. As, where a deed of land is given to one and to his heirs, with a restriction that the grantee shall have the estate for life only, and then to his heirs for ever, or that the grantee shall not alien, such restriction is void, and the grantee takes an absolute estate: Coke Litt. 223 a; 5 Vin. Ab. 101, z. pl. 11, 14, 22; 1 Swift's Digest 77; Hawley v. Northampton, 8 Mass. 37; Hall v. Tufts, 18 Pick. 460.

A general restriction as to conveying after a grant in fee, is void: McWilliams et al. v. Nisly, 2 Ser. & R. 507; 4 Kent 534-5. SERGEANT, Justice, in delivering the opinion of the Court in the case of Turner v. Fowler, 10 Watts 328, says "a condition not to alien, annexed to a feoffment or devise in fee, is void, being absurd and repugnant."

Where the testator evinces a general intent to give a fee, with an apparent particular intent in relation to alienation, such particular intent is void because inconsistent with a reasonable enjoyment of the fee: M'Cullough's Heirs v. Gilmore, 1 Jones 370.

Babbitt, for defendant.—We admit that where there is a manifest intent to devise an estate in fee-simple, and it is so devised, a subsequent general restraint upon the alienation of such estate may be void. But the intent of the testator is, we contend, the great leading and fundamental rule in the construction of wills, to which all other rules are subservient, and are in fact auxiliaries designed as aids in arriving at the intention of the testator: Findlay v. Riddle, 3 Bin. 139; Beltzhoover v. Costen, 7 Barr 18; Johnson v. Currin, 10 Barr 498.

We contend that, though the testator has used words which, standing alone, would convey a fee-simple, it is most manifest, from the whole context, that it was not his intention to grant an estate in fee-simple, which would carry with it the power of alienation. From his express words, we see that he designed to grant to the devisee the use, during her life, unalienable, with remainder in fee to her heirs. This intention is too clear to admit of a doubt. The operative words are closely connected in a single sentence, and the latter clause restrains and modifies the meaning of the whole. One part cannot be separated from the other and rejected as repugnant. But if it could be so, it would be the first clause of the sentence (which seems to grant a fee-simple) that should be rejected; because, where there is repugnance in a will, the rule is that the latter of the repugnant provisions must be retained, and the former rejected. The intent of the testator will control the legal and technical operation of the word "heirs" in a will: Perrin v. Blake, 4 Burr 2581; Johnson v. Currin, 10 Barr 498; Hileman v. Bouslaugh, 1 Harris 353.

As to the case of McCullough v. Gilmore, 1 Jones 370, that case is ruled on the ground of there being a manifest intent by the testator to grant an estate in fee-simple, which could not be overruled by an obscure and ill-defined vague intent in some way to control the legal operation of such estate. He referred to 10 Barr 498, Johnson v. Currin.

Loomis, for plaintiff.—Here is a...