Good v. Fichthorn

Citations

• 144 Pa. 287
• 22 A. 1032
• 1891 Pa. LEXIS 611

Syllabus

<p>1. Where a testator gives an estate in fee-simple, aud subsequent parts of the will unequivocally show that he means the devisee to take a less estate only, the prior devise is to be restricted accordingly; but such restriction will not be effected by words importing merely an intent or desire of the testator to withhold legal incidents of the estate already given.</p> <p>(a) A testator gave to his wife all his estate “as her absolute property, .... with all the powers and rights in my entire estate .... that I myself possessed while living,” with authority in her lifetime to sell and convey any part or all of his estate “ as her absolute properly,” the proceeds to be her “absolute property” for her use and maintenance.</p> <p>(b) He provided, further, that should his wife during her lifetime “not consume or use all my property, .... then I do hereby enjoin and direct her to make and publish her last will, .... that after her decease all the rest and residue not consumed, used, or sold by her, shall be divided,” the one half among his, the other half among her brothers and sisters:</p> <p>2. In such case, the testator, giving an absolute fee with express powers to consume or convey, did not himself devise the unconsumed residue, but requested his wife to do so, in words, ordinarily importing command, but so used as to indicate only an intent, not to reduce the estate previously given, but to control one of its incidents, and therefore unenforceable.</p>