Appeal, No. 112, April T., 1957, from judgment of Court of Common Pleas of Lawrence County, March T., 1956, No. 33, M.D., in case of Michael LaRosa v. Robert McVicker et ux. Judgment reversed.
Donald E. Williams, with him Gilbert D. Levine, and Levine & Lyon, for appellant.
Robert M. White, II, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 96]
On June 2, 1953, Michael LaRosa's wife, Teresa, died seized of certain premises, containing approximately
[ 185 Pa. Super. Page 97]
two acres, in Union Township, Lawrence County, leaving a last will and testament which provided, inter alia, as follows: "All the residue and remainder of my estate, I give, devise and bequeath to my daughter, Pauline LaRosa, absolutely and in fee simple. Reserving, however, the use of our home to my husband, Michael LaRosa, for and during his natural life, or so long as he shall have need of the same". Margaret McVicker is Teresa's daughter and holds a power of attorney from Pauline. After his wife's death, Michael lived in the home with a son until the son died. Thereafter, the McVickers moved into the home under an oral agreement with Michael by virtue of which they were to pay him $40.00 a month rent and also furnish his meals. Trouble developed when the McVickers failed to pay the rent, and they left the home in July, 1955. In August, 1955, Michael rented the home to David W. Miles, and took a trip to Italy. Upon his return, after two months, he found that the McVickers had dispossessed Miles and taken over the premises themselves. They refused to admit Michael, whereupon he filed a complaint in ejectment, together with a claim for mesne profits and damages. The case came on for trial and, after hearing the testimony of Michael and his witnesses, the trial judge granted the McVickers' motion for a compulsory non-suit.*fn1 Michael's motion
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to take off the non-suit was subsequently overruled, and in effect judgment was entered for the McVickers. This appeal followed.
Ejectment is a possessory action, Shannon v. Reed, 355 Pa. 628, 50 A.2d 278, and lies to regain the possession of real property, with damages for its unlawful detention: Dice v. Reese, 342 Pa. 379, 21 A.2d 89. It can succeed only if the plaintiff is out of possession and has a present right to immediate possession: Brennan v. Shore Bros., 380 Pa. 283, 110 A.2d 401. The remedy is available to the tenant of a life estate: Heyer v. Kranch, 52 Pa. Superior Ct. 635. Appellant's position is that Teresa devised to him a life estate in the home. Appellees contend that Teresa devised a fee simple estate to Pauline, and that Michael's interest in the home was merely a personal privilege, which was "surrendered" by his establishment of a residence elsewhere.
The pole star in the construction of any will is the intention of the testator: Britt Estate, 369 Pa. 450, 87 A.2d 243. Where one part of a will devises an estate of inheritance in land, but a subsequent part unequivocally indicates an intent that the devisee take only a lesser estate, the prior devise is restricted accordingly: Field's Estate, 266 Pa. 474, 109 A. 677. In other words, if the language used in the first instance is suitable to the grant of a fee simple estate, but later language indicates a dominant intent ...