Huber v. Hamilton

Supreme Court of Pennsylvania March 20, 1905

Huber v. Hamilton, 211 Pa. 289 (Pa. 1905)

60 A. 789; 1905 Pa. LEXIS 454

Dean, Elkin, Fell, Mestjrezat, Potter

Opinion of the Court

Per Curiam,

This will gives to the wife an estate in fee simple under all the cases. The words which seem to import a restriction on her power to alienate it cannot affect the primary devise of the fee. A power of alienation is an inseparable incident of a fee: 4 Kent, 131; McWilliams v. Nisly, 2 S. & R. 507.

The learned judge .of the court below reached the same result by holding, on the authority of Henninger v. Henninger, 202 Pa. 207, that the measure of her enjoyment of the estate, was, under the devise, as full as if testator had attempted no restriction. It matters not on which theory the result is reached, the judgment is right, and is, therefore, affirmed.

Reference

Cited By: 10 cases
Status: Published
Syllabus: Will—Devise—Fee simple estate—Power to sell—Restriction—Gift to widow. The words in a will which seem to import a restriction on the power of alienation cannot affect the primary devise of a fee. A power of alienation is an inseparable incident of a -fee. Testator directed as follows: “I give and devise to my beloved wife all the real and personal estate owned by me at my decease; she to dispose of any and all my real and personal estate she wishes to for her own use, so long as she remains my widow; on her decease or marriage, all of what is left to revert back to my legal heirs.” Held, that the widow took an estate in fee simple.