152 Pa. 108 | Pa. | 1893
Opinion by
It is conceded that David Boyle was at the time of his death in 1866 the owner of the land in controversy, and that both parties to this action claimed title under him. The plaintiff seeks to recover, as one of the children and heirs at law, his distributive share in his father’s real estate under the intestate laws. The defendants rely upon the last will and testament of David Boyle, by the terms of which he devised an estate in this land to his wife. If that estate was for life only then the plaintiff would seem to be entitled to a verdict ; but if it was an estate in fee simple then the defendants are her successors in title and the plaintiff cannot recover. This controversy depends therefore on the construction of the will which is in the following form : “ As to my worldly goods, after my just debts are paid, I give and bequeath to my loving wife Rhoda all my. property real and personal, for her support during her natural life-time; any remainder at her decease to be disposed of by her, as she may think just and right, among my children.” The real estate consisted of a one half interest in a farm of ninety acres. The personal estate consisted of
The question thus presented is over the estate given by the will of David Boyle to his wife Rhoda. It can admit of no doubt that the primary object of the testator’s solicitude was his wife. Their children had reached maturity and most of them were settled in homes of their own. If his wife survived him she would need the care and support that he could no longer provide in person. He accordingly made his will put
This view of the will is conclusive of this case. It gives the widow a fee with all its incidents, including the power to sell and the power to devise, accompanied by the expressed.wish of the testator that if anything shall be left unsold it may go to their children. Not necessarily in equal parts, or to all the children, but to so many and in such proportions as she may determine, when the time comes, to be “ right and just.” The words referring to “ any remainder ” do not limit his wife’s estate or the preceding words of gift, but are precatory. They show his wish that if anything remains out of the little he left to his wife it may go to their children, but he submits the whole subject to her sense of right.
It is suggested that the words of trust and confidence employed by the testator operate to destroy her estate and turn her into a trustee for all the children, so that she could not
The history of the rise, decline and fall, in this state, of the doctrine that words of confidence import a trust, is illustrated in the several cases arising under Pennock’s will. The doctrine was borrowed several centuries ago by the English courts from the Roman law, and was first recognized and applied in this state in Coates’s Appeal, 2 Pa. 129, which arose upon Pennock’s will. A bequest of personal estate was made by the testator to his. wife, absolutely, followed by these words: “having full confidence that she will leave the surplus to be divided at her decease justly among my children.” Upon these words ifi was held that the widow became a trustee for the children so that she could not use the corpus of the gift to her, but only the income derived therefrom. A few years later the same bequest came under consideration in McKonkey’s Appeal, 18 Pa. 253, and it was then held that the widow was not restricted in the use of the bequest to her by the words of confidence, but only in the disposition of the surplus remaining at her death. The conclusion then reached was that as to such surplus the will of her husband clothed her with a power in the nature of a trust, so that all the children were beneficiaries and entitled to share to some, though not necessarily to the same, extent in the unconsumed surplus of the gift to her. Finally in Pennock’s Appeal, 20 Pa. 268, the same bequest was before this court for the third time and the doctrine of a power in the. nature of a trust, arising from words of confidence, was repudiated. The last vestige of the Roman doctrine on the subject, was discarded, and in a well reasoned opinion it was held that’ the gift to the widow was absolute. The words of confidence were precatory; and both as to the income and the corpus the power of the widow as owner was without limitation.
Our later cases, with perhaps one or two exceptions, in which the question was obscured by other considerations, have fdlowed Pennock’s Appeal. In Kinter v. Jenks et al., 43 Pa.
Nor will words declaratory of the testator’s opinion or understanding have that effect. Thus in McIntyre v. McIntyre, 123 Pa. 329, testator gave certain real estate to his wife and then added, “ She will not have power to sell, but may leave the same to her children.” This court did not adopt the testator’s view of the legal effect of his devise, but held that she had full power to sell. Perhaps the latest ease on this subject is Good v. Fichthorn, decided one year ago and reported‘in 144 Pa. 287. The testator in that case as in the case under consideration gave his entire estate to his wife. In case she did not consume the whole estate he made the following direction : “ I do hereby enjoin and direct her ” to make a will and divide the remainder in a manner which he proceeded to indicate. We held, in an opinion by our Brother Mitchell, which fully sustained the judgment, that words of command addressed by the devisor to the devisee are as ineffectual to reduce a fee to an estate for life, as precatory or explanatory words. This does not disturb the rule that words importing a fee may be limited in their operation and the estate reduced, where, upon the whole will, it is clear that the testator intended only a life estate, as was the case in Uri'ck’s Appeal, 81 Pa. 336; but what we now say is' that mere precatory words, or words of command, or words of explanation, are not enough to establish an intention that is not to be gathered from a consideration of the operative words upon the face of the instrument.
In the case before us the intent of the testator appears from the apt words of gift employed, and from the explanatory words in immediate connection. If these words were transferred from the close, to the beginning of the words of gift, the sentence would read thus: “ Por the support of my loving wife Rhoda during her natural life I give her all my property real and personal.” Such transposition to aid in reaching a testator’s intention was adopted, and the practice sanctioned, in Merkel’s Appeal, 109 Pa. 235, where the order of the bequests was changed in order to ascertain the testator’s purpose.
As the title to David Boyle’s real and personal estate passed to his wife under his will, and to the defendants or those under whom they claim by virtue of her will, the plaintiff has no title whatever, and the consideration of the other questions raised ■becomes unimportant.
The judgment is reversed.