Appeal, No. 6, Feb. T., 1960, from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1958, No. 13, in case of Anna Swartz Pavlikowski et al. v. Margaret Swartz Ehrhardt et al. Decree affirmed.
Myron A. Pinkus, with him Jack Rubenfeld, for appellants'
David J. Reedy, with him Van Deusen, Van Deusen & Reedy, for appellees.
Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).
[ 192 Pa. Super. Page 375]
This is an appeal from the judgment of the Court of Common Pleas of Lackawanna County decreeing the partition of real estate in that county.
William Swartz, Sr. died testate on July 10, 1951, and by his last will and testament devised his real estate to his children, as follows: "Third: I give and devise my real estate consisting of a house and lot, known as and located at 128 S. Cameron Ave., in the City of Scranton, Pennsylvania, to my two daughters, Anna Swartz and Margaret Swartz, and to my son, Alex Swartz, in equal shares, subject nevertheless to the express understanding that said real estate shall not be sold except by mutual agreement of said three children."
The question raised by this appeal is whether the condition contained in this devise is a qualified restriction not void as a restraint of alienation. The appellants contend that the condition discloses the dominant intent of the testator to preserve the family residence for the children until they mutually agree to sell, so that the judgment of partition should be set aside. The appellees contend that the clause indicates the testator's dominant intent to devise a fee simple estate to his children and that the subsequent condition is a restraint to alienation and, therefore, void. The court below agreed with this contention and entered judgment in partition.
Mr. Justice DREW made a very interesting review of restraints on alienation in Byrne's Estate, 320 Pa. 513, 181 A. 500 (1935), and said at page 522, "The effort always is to determine the intention of the testator, and, unless public policy forbids it, to enforce that intention, so that in death his property may be faithfully disposed of according to his will. Courts have this duty in the last analysis, and cases, even in the
[ 192 Pa. Super. Page 376]
same jurisdiction, which seem to be, on the one hand, completely parallel, or, on the other hand, in irreconcilable conflict, are really not so because in each instance the result reached is founded upon the court's decision, in view of all the circumstances, as to what the testator intended. As was said by Chief Justice MARSHALL in Smith v. Bell, 31 U.S. 68, at page 80, quoting from 3 Wils. 141, 'Cases on wills may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.'"
And we said in Tombs Estate, 155 Pa. Superior Ct. 605, 609, 39 A.2d 367 (1944), "Each will is in a sense unique, for the circumstances surrounding each individual testator are themselves unique, and as a consequence the precedent of previously decided cases is often helpful but many times is not controlling... The ultimate objective is to arrive at the intent of the testator as expressed within the four corners of the will, and when ...