Trout v. Rominger , 198 Pa. 91 ( 1901 )

Opinion by

Mb. Justice Bbown

The plaintiffs below claim the property in dispute as the next of kin of Annie Rominger, and their right to recover depends upon what estate she took under the will of her husband, John Rominger, deceased. The intention of the testator, in making provision for his widow, as declared in his will, must prevail, for we are perplexed with no rule of construction that requires us to violate it. The clause in which is found his intention as to the estate given and devised to his widow, and which need not be read in connection with any other portion of the instrument to discover what he intended, is as follows : “ Item. After the payment of all such debts as I may justly owe and also my funeral expenses, I give and bequeath all the rest and residue of my estate, real, personal and mixed or of whatsoever nature or kind or wheresoever the same may be, and remain at the date of my decease to my beloved wife Annie Rominger, to have and to hold the same to her own use, benefit and behoof forever; the same to be and remain for her just and necessary support during the natural life of her my said beloved wife, Annie Rominger. And in case any of the above bequeathed property should remain at the date of my said wife’s death I order and direct that the same be divided between my children share and share alike, or if any of them be dead, then unto their legal representatives in a legal manner. And I hereby nominate, constitute and appoint my said beloved wife, Annie Rominger the sole executrix of this my last will and testament.” If what follows the word “ forever ” had been omitted, no court would have been called upon to determine what estate had been given to the widow, for no question could have been raised that she took a fee ; but the testator did not omit the qualifying words, and it is evident that he inserted them for the purpose, first, of declaring his intention that the estate given and devised to his wife should be for her just and necessary support during her life, with the right to dispose of his property and use as much of the principal as might be necessary for her support, and secondly, of disposing himself of what might remain of his estate after her death. It is not a devise to the widow with restraint upon her power of alienation, or coupled with precatory words, expressive of the wish of the testator that she make certain disposition by her will of what might be left at her death; and Janretche v. Proctor, 48 Pa. 466, Second Reformed Presbyterian Church v. Disbrow, 52 Pa. 219, and the numerous other authorities called to our attention by appellants’ counsel are clearly distinguishable. Equally distinguishable is Gilchrist v. Empfield, 194 Pa. 897, where a devise was made to the widow in fee simple, followed by no words declaring the intention of the testator to be that the estate devised was to be for her support during life, with a disposition by him of what should remain after her death. “ Moreover,” it was there said, “ the will in the fifth clause gives the unexpended residue to the same persons who would have taken under the description of heirs, to wit: all the children of both the parents.” Annie Rominger, the widow, under the foregoing clause took for “ her own use, benefit and behoof forever ” an estate limited by its very terms to her natural life and the word “ forever,” taken in connection with what follows, can have no other meaning than that during said term her dominion over the estate so given and devised to her by her husband should be unlimited for her “ just and necessary support,” should she require its consumption; but the testator reserved to himself and exercised the right to dispose of what might not be consumed. In mandatory words, he directed that what might remain of his estate after the widow’s enjoyment of it, should go to his children, born to him by a former wife, there having been no issue from his second and last marriage. These words are not only mandatory, but clear, that the father had no intention of disinheriting his children; on the other hand, they unequivocally manifest his intention that after the very proper support given to his widow, the stepmother of his children, the latter should have and enjoy what might be left. Gross v. Strominger, 178 Pa. 64, controls the case, and we need add nothing more by way of interpretation of this will than the following words of the learned judge below: “We are, therefore, of opinion, that this will vested in the wife the use, benefit and behoof of the property for her support during life, with authority to use the whole thereof if necessary for her support, and vested the residue remaining after her death in the children of testator in fee simple.”

The real estate left by John Rominger was sold by Annie Rominger, as his widow and devisee, to William Beck for $4,750, against the protest of the appellees, who alleged that she did not have a fee simple in the property, and that the price paid was wholly inadequate. All doubt as to the title of the purchaser was subsequently removed by their executing a quitclaim deed to him, in consideration of $2,250 paid to them. What was' paid to -the widow and them together, may be regarded as representing the actual value of the property sold, and as that purchased by the widow and now claimed by the appellees under the will of their father was paid for by her out of the proceeds of the sale of his property, the appellees can retain it. That they received from the vendee of their stepmother á small portion of the actual value of their father’s property for quieting title to him, is no reason why they should not have the balance if definitely traced, as it has been, to the reinvestment in other real estate by the widow. Under the case stated, judgment was properly entered below for the defendant, and for the reasons given, it is now affirmed.