where the testator discloses an intention to the contrary as, for example, by treating the first taker as living at a period subsequent to the testator's death since the intention of the testator always controls. Davenport et al., Appellants, v. Graham, 343 Pa. 497, 23 A.2d 482; Wraught's Estate, 347 Pa. 165, 166, 32 A.2d 8.
It appears from the wording of the Will that the testatrix intended this real estate to be returned to her heirs in the event that her son and daughter died without issue, and without having sold the property, that, by the word 'issue', it was meant issue living at a particular period or at the time of the death of the first taker. In other words, the testatrix intended a definite, and not an indefinite, failure of issue. Mebus' Estate, 273 Pa. 505 at 517, 117 A. 340; English's Estate, 270 Pa. 1, 4, 112 A. 913; Kirkpatrick's Estate, 280 Pa. 306, 124 A. 474.
It is contended that since James K. Moorhead and Ida B. Moorhead had the right and authority to sell and dispose of said real estate during their lifetime, that the restriction which the testatrix placed on said devise is not legally enforceable, and is in restraint of alienation. Fisher v. Wister, 154 Pa. 65, 25 A. 1009; Rea v. Bell, 147 Pa. 118, 23 A. 349. In other words, reliance is placed on the rule of law that the forfeiture by gift over of an absolute estate upon failure to dispose of property during life or by Will is invalid. However, before this doctrine may be invoked, it must appear clearly, from a reading of the whole Will, that the testatrix's intention was to vest in the first taker an estate of absolute ownership. Accordingly, a gift over after the death of the first taker may indicate an intention to vest in the first taker no more than a life estate, and where an examination of the whole Will discloses such to be the controlling intention, it wil, of course, be given effect. Byrne's Estate, 320 Pa. 513, 518, 181 A. 500; Stanton et al. v. Guest et al., 285 Pa. 460, 132 A. 529; Haydon's Estate, 334 Pa. 403, 6 A.2d 581; Eichenlaub's Estate, 307 Pa. 357, 161 A. 317; Calder's Estate, 343 Pa. 30, 21 A.2d 907.
All words used by a testator should be taken into account and where they clearly show a dominant intent not to vest a fee but to restrict the gift, it must be given effect accordingly. Where a will is expressed with sufficient clearness so as not to require the use of artificial rules of construction to ascertain its meaning, it is unnecessary to refer to such rules or to discuss authorities. Deeter's Estate, 280 Pa. 136, 124 A. 416.
Examining the present Will in the light of these precedents, the clause 'die without issue' as it pertains to both James K. Moorhead and Ida B. Moorhead, and the phrase 'if not sold to my heirs' must be interpreted as referring to the death of both devisees irrespective of when it might occur and definitely not during the lifetime of the testator. If this were not true, the provision that the real estate if not sold was to return to the heirs of the testatrix would be meaningless. Obviously there could not be any use, disposal, consumption, or conveyance of the real estate by either James K. Moorhead or Ida B. Moorhead until after death of the testatrix, Eliza S. Moorhead, for then only would the provisions of the Will go into effect and the rights and privileges given in the Will become legally effective.
It appears to me that the testatrix intended to give her two children, or the survivor, the use and power to consume or dispose of said real estate during their life for any purpose and in any way that they or the survivor might see fit, and without interference or challenge from any one. But it is equally clear that if said real estate were not disposed of and death occurred without issue, it was to go to the heirs of the deceased testatrix, living at the time of the death of said children or devisees. In vesting a life estate in said children with power to consume, the testatrix gave them the complete power, use and enjoyment of the property and, in fact, all the benefits of absolute ownership except the power to control the devolution of the property upon their death without issue.
Precedents are of little value in the construction of Wills, because, when used under different circumstances and with different context, the same words may express different intentions.
Wills and the construction of them do more to perplex the legal mind than any other learning, and to make a certain construction of a Will, the primary effort is to determine the intention of the testator. Unless public policy forbids, it is the duty of the Court to enforce that intention so that in death the property involved may be faithfully disposed of according to the Will. Since the courts have this duty in the last analysis and in evaluating the expression used by the testator in the instant case, I can reach no other conclusion but what it was intended that the children were given a life estate with the absolute power of consumption and use during their lifetime, but that upon failure to exercise said right or upon their decease without issue, said real estate was to become vested in the heirs of the testatrix. The intention of a testator must be ascertained from the testamentary instrument as a whole. Hanna's Estate, 344 Pa. 548, 26 A.2d 311.
The expression used by the testatrix, that if each of the devisees died without issue and the property had not been sold that it was to be returned to the heirs of the testatrix, means that said real estate would become vested by the provisions of said testament in the heirs of the testatrix who were living on the date of the death of the last devisee, which in this case was October 4, 1927.
The words 'revert' or 'return' used in a Will are words of gift, with the meaning of 'to go to', and are sufficient to carry the estate, after the expiration of a particular estate, to the persons so designated. Smith's Petition, 291 Pa. 129, 139 A. 832.
The devise of Ida B. Moorhead in her Last Will and Testament to the Women's Missionary Society of the New Alexandria Presbyterian Church, therefore, was legally ineffective. Furthermore the Orphans' Court proceeding, in which the sale by the Society to Angelo Assini and Mary Assini was authorized, could not clear or make indefeasible a title which never existed.
I do not believe that the testatrix in this case contemplated the death of her son or daughter, James S. Moorhead and Ida B. Moorhead, in her own lifetime without issue, but, on the contrary, she was contemplating death of her children without issue after her decease when they had come into possession of her estate.
I am of the opinion that Ida B. Moorhead did not have fee simple title or ownership to said real estate at the time of her death on October 4, 1927.
As a result thereof, Angelo Assini and Mary Assini, his wife, are not the owners in fee simple of the property which has been condemned,and no right exists for them to claim the award which has been made in the amount of $ 514.00 as just compensation for the taking of said property. The exceptions to the award of the viewers are sustained, the judgment of said Board is reversed, and it is directed that the award of just compensation be distributed among the heirs of Eliza S. Moorhead living at the time of the death of Ida B. Moorhead on October 4, 1927.