Kelly v. Pennsylvania Railroad , 226 Pa. 540 ( 1910 )

Per Curiam,

The paramount intention of the testator, John McClurg, was that his son William should take a fee in an undivided fourth of his farm. Though the devise passed the legal title to a trustee, it was to the trustee for the use and benefit of William McClurg and “his heirs.” This gave an equitable fee to William. What follows discloses no intention that this absolute devise should be cut down to a mere life estate. The father simply wished to throw around the devise to his son and “his heirs” some protection against the son’s improvidence. He had an unquestioned right to do so: Spring’s Est., 216 Pa. 529; and in doing so there was nothing inconsistent with the absolute devise: Boies’s Est., 177 Pa. 190. Nothing but a clearly expressed intention following the absolute devise to reduce it to a spendthrift trust, limited to the life of William, can have such an effect. No such intention appears. On the contrary, William is given the “usufruct and profits” of the interest in the farm, and there is no devise over upon his death. The trustee is to sell only at the request of William. As to the interests of the other three sons, Thomas J., Joseph and Washington, the direction is that if either shall die without lawful issue his interest shall vest in the survivor or survivors. But there is no provision as to William’s share upon his death. This was because the testator had previously devised it to him and his heirs. It could not, therefore, constitute a part of the residuary estate of the testator.

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