72 Pa. Super. 332 | Pa. Super. Ct. | 1919
Opinion by
In and by the fifth paragraph of his will the testator provided as follows: “I give, devise and bequeath to my wife......all the rest and remainder of my estate...... for the term of her natural life with full power and authority to sell or use any part of my estate for her own individual benefit or for any purpose whatever as she shall think proper without being compelled to go into the orphans’ court for permission to sell or use the same, and
Under the provisions of that will, did the wife become immediately vested with the entire estate, both personalty and realty, absolutely and in fee, or did she take but an estate for life with the added power, by her own subsequent election and action, to convert such life estate into an estate absolute and in fee? If we keep firmly in mind the'proposition that artificial canons of construction have no place in the consideration of a will that fairly manifests the intent of the testator, our difficulty in determining the question before us will be greatly lessened, if indeed it does not entirely vanish. It seems we cannot too often recall the cases in which our Supreme Court has plainly and forcibly stated the continuous operation of the principal referred to. In Tyson’s Est., 191 Pa. 218, Mr. Justice Mitchell, after citing many cases wherein the proper functions of canons of construction have been accurately portrayed, declares: “This court has in numerous cases pointedly indicated its determination to restore or preserve the cardinal rule as to intention in its original and proper prominence, and to let every will stand on its own terms as every contract has always been construed to do.” Looking then at the
Now if we lay aside for the moment the consideration of any artificial canons of construction, which are only to be called to the aid of the court to discover the intent of the testator in otherwise doubtful cases, and if we look solely to the language of the will, we can find nothing therein to suggest to the mind, even of the intelligent layman, that it was the intent of the testator to transmit to his wife unconditionally the entire and absolute ownership of all of his property by the mere operation of the will itself without subsequent and affirmative action by her. In Tyson’s Estate, supra, the court was considering the effect of a clause in a will which we think is not distinguishable in substance from the one now under consideration. In what better language could we express our judgment as to the meaning of the will here in controversy than to adopt that used by Mr. Justice Mitchell as follows: “But looked at by itself to ascertain this individual testator’s intent, it is perfectly clear that he did not mean to give the whole without restriction. On the contrary, his intention was to give her so much, and only so much, though possibly amounting to the whole, as should be necessary for her own comfort and enjoyment of life, and the residue, be it much or little, was to pass under his will. This disposition of his estate violated no rule of law......The extent of the widow’s con
So in Fassitt v. Seip, 240 Pa. 406, the same principle was applied by the court and the same line of reasoning followed in the opinion of Mr. Justice Elkin. In that case it was very properly pointed out that the devise or bequest over by the testator following the death of his wife was scarcely compatible with the alleged intent of giving her an absolute gift. So in the present case we not only find the intent of the testator portrayed in the language of the provision in favor of his wife but again and unmistakably in the devise and' bequest over to his children of such portion of his estate as had not been consumed by her during her lifetime. We are of opinion therefore that the widow of the testator primarily took an estate for life in the entire residue of his property with power to consume any portion of such residuum even to the extent of exhausting it. In no proper sense, however, can we predicate of such language that it created an absolute gift of the personalty and an estate in fee in the realty. At the most it was such gift in posse only,
The appeal is dismissed at the costs of the appellant.