Forsythe v. Forsythe

108 Pa. 129 | Pa. | 1885

Mr. Justice Green

delivered the opinion of the court January 5th, 1885.

We think the interpretation given to the will in question in this case, by the learned court below, is correct. It is conceded that the intention of the testator must govern it if it can b’e discovered in the words employed. To us it seems clear, that Hugh Forsythe, the testator, intended to give to his widow a life estate in all his property, with a power of absolute disposal in any manner she might think best. Disposal of what? The learned counsel for the plaintiffs in error say, the life estate. But the words of the will say,: “ with power to dispose of the 'same,'” and the anteóédent of the words “the same,” is “all my property real and personal, including ■the house and lot of ground that I now reside on.” By .these words read ivi their plain and common Sehse meaning, the power of disposal relates to the property in specie,-and not to a mere interest in it,'and we can not read th'fe 'willin' any other way without,,doing violence to its express words, and, the manifest intent of the testator. ' If the testator' had said'that 'his Widow should have power to disposé of;the property 44 bjl .will,” it. could hardly be conten'ded that be did not, mean that •a disposition to become effective after her death'Was intended. But a general power to dispose of the property “as she may think best,” is unlimited as to the mode and therefore includes 'ány- kind' of disposition. . Moreover the word “ dispose,!’, is éspécially apt to convey the idea of a gift' by will: But' besides this it is clear'that'the testator was'disposing of his 'entire estate when he made his’will. ' He'sa3’ps so in Words! He-nam'és'noother deviséé of legatee, possible 'oreobtingent! than his wife, in any'part of ‘his will. He do'es not give her a residue,,aftqr other objects of his. b.oun.ty are provided,for, aS was 'the ’case in Fisher v. Herbell, 7 W. & S. 63, but hp gives hér everything, his whole estate, after payment of debts, during her life, and also the power to-dispose of:it all as she •might'think bést. ■ She exercises this power.' She''enjoyé the estate in its entirety during her life,' and she 44 disposes ” of it by will in. favor of the defendant.

- The plaintiffs are- in no manner 'named in the will as the actual or possible objeóts of the testator’s bounty in any contingency. Yet we are asked to hold that they tak’e an estate by virtue' of this-will, and- against a disposition to' the contrary which was, authorized by its terms. There is no tech-1 nical' r'ule of law which requires us to do this, and we are hot willing to do' it in the face of whát we believe to be a clearly; expressed’opposite intention. In Fisher v. Herbell thé 'decision was based upon what was regarded as a 'sufficiently expressed intention .of the testator that the pQwer, of disposition Was' -limited to the life' éstate of the widow. :T'he will was therefore construed according to the intent of'the testator.' The case was only heard at Nisi Priüs and did' not come' into this court in banc.' 'Whether it w'ould bé io'llowed'now'i'f the1 same question a-rosé' upon the samé'fa'cts may perhaps be doubted, but as the terms of the devise 'in the Case we are1 cóhsidei'i'ng. are in several respects different froto those of 'the' will construed in that'case,'We can'reach a different conclusion without'determining its authority. -A technical power of disposal, of the very substance of the testator’s estate, without any limitation as to the manner or kind of disposal, is given, and.there are' no other .words in the will which .indicate an intent to restrain the act of disposition ,so ,as to be effective during.the life of the widow, ',.In these circumstances we-are pot disposed to declare a meaning to the will' which, we think, was not the meaning of the testator. ■ ■ -

Judgment affirmed.