
    McCALL VS. McCALL.
    A man devised to his wife his farm for life, and if she moved away, then the rents for life. She moved away, and the remainder man entered, and paid the rent; held that the widow was again entitled to possession, when she demanded it
    Error to the Common Pleas of Crawford County. No. 418, Jan. Term, 1884.
    This was an action of ejectment brought for 100 acres of land in Mead Township, which had been owned by Samuel McCall. The will of Samuel McCall, dated Jan. 2nd, 1872, contains- the following item; “I give and bequeath to my beloved wife, Martha, the remainder of my household furniture ; also all my personal property, and the homestead farm of 100 acres, more or less, together with the appurtenances, improvements, and income of the same, so long as she remains my widow and continues to reside on the farm ; and if she removes therefrom, the rental of the same shall be for her separate maintenance and the personal property shall be disposed of to the best advantage, the proceeds to be on interest, and the interest thereon to be applied to her sole use and needs ; and whatever property I may have, at the time of my decease, whether real, .personal, or mixed, to her use, so long as she remains my widow, or during her natural life ; and the remainder and reversion of all my property, not otherwise disposed of, together with that herein mentioned, shall revert to and become the property of my son, Joseph E. McCall, provided he shall remain with my wife and myself, until our decease if she shall survive me, and provided, also, that two years after the decease of my wife, Martha, if she shall survive, he shall pay to my other children, or their heirs, the amounts hereinafter mentioned ; to the heirs of James Y. McCall, $100, to the children of Mary Ellis, $25, to the children of Philo Hotchkiss, $25, to Mary McConnel, $100, to David McCall, $100, to Levy McCall, $100, to be paid out of my estate.” Samuel McCall died in April, 1872. Joseph McCall was in possession of the farm till August, 1877, when he died, leaving a widow and children, the defendants in this case. The widow of Samuel McCall has since brought an action of ejectment against the Avidow and children of Joseph McCall, to recover possession of the farm, devised to her for life. The defendants asked the Court to charge, that, if the widow of Samuel McCall did not desire to reside on the farm, and-the heirs are willing to pay her the rent she is not entitléd to turn the heirs of Joseph McCall out of possession, for the mere purpose of giving the possession to some third person, either as tenant or otherwise. The Court charged the jury 'as follows :
    Gentlemen oe the Jury : — This is an action of ejectment for one hundred acres of land, brought by Martha McCall against Alice McCall, Samuel T. McCall and Mattie McCall.
    The plaintiff is the widow of Samuel McCall, who prior to his death, which took place in 1872, owned this land known as the homestead, where he lived with his wife, and at the time of making his will Joseph lived with him. Joseph McCall was not married at the time, and was not married until after the death of Samuel.
    Mrs. McCall claims title and right to the possession- of this property under the folloAving clause in the will of her deceased husband:
    “I giAm and bequeath to my beloved wife, Martha McCall, the remainder of all my household furniture, also all my personal property, and the homestead farm of one hundred acres, more or less, together with the appurtenances, the use, improvement and income of the same, so long as she remains my widow and Avishes to reside on the farm, and if she removes therefrom, the. rental of the same shall go for her separate maintenance, and the personal property shall be disposed of to the best advantage, and the proceeds put upon interest, anc} the interest thereon to be applied to her sole use and needs, and whatever other property I may have at the time of my decease, whether real, personal or mixed, to her use so long as she shall remain my widow, or during her natural life and the remainders aud reversions, of all my property not otherwise disposed of, together with that herein mentioned to the use of my wife Martha, shall after her death revert to and become the property of my son, Joseph F. McCall, provided he shall remain with my wife, Martha, and myself until our decease.”
    He was to. pay certain other bequests which seemed to have been made chargeable upon this devise.
    The widow remained in possession until after the death of •Joseph in August, 1877, and then left, and now by this action of ejectment seeks to recover possession against the widow and two minor children of Joseph F. McCall.
    The construction of this will is for the Court, and we construe it thus : It seems to have been the whole purpose and intent of this will to provide for the maintenance and support of his wife, Martha, and that she should have all the usufruct of it, if she did not desire to remain in .possession during the time of her natural life or widowhood. And whether the devise to Joseph F. McCall, in the latter part of this clause be a vested remainder or a contingent remainder, is immaterial in this case. In this action Martha McCall, the widow of Samuel McCall, being out of possession, seeks to be placed in possession of the property devised to her by her husband. She has a right to what the will gives her; possession of the premises and an estate in this homestead during her life, and during her widowhood, and as such in this action of ejectment she is entitled to possession. And. she is entitled to it to the exclusion of Alice McCall, Samuel T. McCall and Martha B. McCall, the minor children of Joseph McCall.
    Your verdict will be for the plaintiff for the land described in the writ.
    The points, in so far as they are incompatible with the construction we have given this will and the instructions given you, are answered in the negative.
    
      Tlie jury rendered a verdict for the plaintiff, under the direction of the Court.
    The defendants then took a writ of error, complaining of the action of the Court in directing a verdict for the plaintiff.
    
      D. M. Farrelley and J. B. Brawley, Esqs. for plaintiffs
    argued that the devise to Joseph McCall was a vested remainder; Stark vs. Molleson, 8 W. 432. They also cited Brownfield vs. Brownfield, 12 Penna. 146; Black vs. Black, 89 Penna. 383.
    
      John J. Henderson for defendant
    argued, that the estate given to the widow was a life estate, and she was the first taker, and is to be regarded as the preferred object of the testator’s bounty; Wilson vs. McKeehan, 53 Penna. 80. Subsequent, ambiguous expressions in the testator’s will, are not to be construed so as to change the testator’s distinctly announced main intention; Sheetz’s Appeal, 82 Penna. 217.
   The Supreme Court affirmed the judgment of the Court below, on Feb. 16, 1885, in the following opinion:

Per Curiam.

The Court gave an accurate construction of this will. The defendant in error is clearly entitled to the possession of the property.

Judgment affirmed.  