Kearns v. Kearns , 107 Pa. 575 ( 1884 )

Chief Justice Mercur.

delivered the opinion of the court, November 13th, 1884.

This contention arises under the clause in a will, which is in these words : “I'also allow my wife Rebecca to have any part of my dwelling-house which I now reside in, which she may think proper to take and occupy during her natural life, for her use and the use of my two daughters, Mary Jane and Charlotte, so long as they remain single or unmarried.” Rebecca and Charlotte are dead; Mary Jane is living and remains single. The question is whether she has such an interest, since the death of her mother, as to entitle her to the possession of such portion of the house as the mother occupied.

It will be observed that the devise was to Rebecca only. The right to select what portion she might take ivas given to her alone. The duration of time for which she might take and occupy was only during her natural life. The use and occupancy during the time for which it was granted was for her use and the use of his two daughters, while they remained single. Not for their use after the death of their mother, but during such portion of the mother’s estate as they remained single. The evident intention of the devise was that the daughters who remained single should make it their home with their mother during the continuance of her estate. The 'estate was not given directly to-the daughters. It was given to the mother. The use of the daughters is under the life estate of the mother. When that fell, all the interest in the use of the property fell with it. The right to occupy, or, in other words, the occupancy was given to the mother, but that occupancy was for the joint use of the mother and the daughters during the occupancy of the mother, for so long a time as the daughters remained single. When the right of the mother’s occupancy or life estate terminated, all right of use flowing from that occupancy was ended.

The right to take and occupy depended wholly on the election of Rebecca. It was personal to her. The testator did 'not impose on her any obligation to take any portion of the house. He merely “ allowed,” that is, permitted her to do so. If she had not “ thought proper ” to take and occup3r any part of the house, the daughters could not have had any “ use ” thereof. They were powerless to take any steps to originate a use, or to do any act whereby their use could be extended .beyond the life of Rebecca. The testator devised to his son Jerome twenty-five acres of land on which the said dwelling-house is situated, so the house is devised in fee, after the termination of the estate given by the clause lirst quoted. It follows the learned judge was clearly correct in entering judgment in favor of the plaintiff below, on the case stated.

Judgment affirmed.