No. 395 | Pennsylvania Court of Common Pleas, Lancaster County | Oct 5, 1891
The will of Solomon Good gave his widow in the outset a fee-simple in the land in suit. This would be clear enough from the devise to her, “ as her absolute property,” in the fourth clause; but, as if to avoid any possible question on that point, the same clause vests her with “ all the powers and rights ” that testator himself possessed while living, and subsequent clauses declare she shall have the power to sell, and that the proceeds shall be her absolute property. Then follows the clause upon which the present contention arises: “ Should my wife during her life-time not consume or use all my property, real and personal, for her proper support, then I do hereby enjoin and direct her to make and publish her last will and testament, that after her decease all the rest and residue not consumed, used, or sold by her shall be divided,” etc. Did this clause reduce the fee previously given to a life-estate as to the unconsumed residue ?
That such effect may be produced is admitted, but the presumption is against it. The rule is well expressed by Strong, J., in Sheets’ Est., 52 Pa. 257" court="Pa." date_filed="1866-05-15" href="https://app.midpage.ai/document/sheets-estate-6232698?utm_source=webapp" opinion_id="6232698">52 Pa. 257, thus : “ If a testator give an estate of inheritance, .... and in subsequent passages unequivocally shows that he means the devisee to take a lesser interest only, the prior gift is restricted accordingly.” As it must unequivocally appear that the testator meant to limit the estate, it has been uniformly held that no merely precatory words will be sufficient. Thus, in Pennock’s Est., 20 Pa. 268" court="Pa." date_filed="1853-01-27" href="https://app.midpage.ai/document/in-re-pennocks-estate-6229346?utm_source=webapp" opinion_id="6229346">20 Pa. 268, Lowrie, J., speaking of the English rule, which was held not to be adopted here and to be fading away even in England, said: “ If it can be implied from the words that a discretion is left to withdraw any part of the subject of the devise from the object of the wish or request, or to apply it to the use of the devisee, no trust is created; ” and again: “ If she could thus use (consume or spend) it, she was no trustee in the eye of the law.” The general rule was accordingly held in that case to be that words expressive of desire or recommendation will not convert a devise into a trust, unless it appear that the testator intended not to commit the estate to the devisee, or its ultimate disposal to his discretion. And in Burt v. Herron, 66 Pa. 400" court="Pa." date_filed="1870-11-05" href="https://app.midpage.ai/document/burt-v-herron-6233977?utm_source=webapp" opinion_id="6233977">66 Pa. 400, it was held that, while words of request in a will are commands as to the direct disposition of the estate, yet they are not so as to limitations
The true test of the effect of language apparently at variance with other parts of the devise, is whether the intent is to give a smaller estate than the meaning of the words of the gift standing alone would import, or to impose restraints upon the estate given. The former is always lawful and effective, the latter rarely, if ever; the-first, because the testator’s intention is the governing consideration in the construction and carrying out of a will; the second, because even a clear intention of the testator cannot be permitted to contravene the settled rules of law b}»- depriving any estate of its essential legal attributes.
Applying this principle to the present case, it is clear, as already said, that the testator gave a fee-simple absolute to his widow, repeated and reiterated, as if he wished to put it beyond all question. But it is also clear that he still thought it necessary, or at least permissible, for him to prescribe how it should be used. Therefore, he gives her all the rights and powers over it, that he had while living, and, in addition, specifies the right to sell and convey, to make title, to use the proceeds, and, lastly, as an adjunct to the will whose making he enjoins, “ the power and authority ” to appoint one or two executors, as she may deem proper. It is true that the words he uses in regard to the making of her will, “ enjoin and direct,” are in their natural meaning mandatory and imperative; but, coming as they do at the end, and in connection with the express enumeration of useless and superfluous powers, they indicate an intent to grant or withhold incidents of the estate already given. As said by Mercur, C. J., in the analogous case of Bowlby v. Thunder, 105 Pa. 173" court="Pa." date_filed="1884-01-25" href="https://app.midpage.ai/document/bowlby-v-thunder-6237650?utm_source=webapp" opinion_id="6237650">105 Pa. 173, “Not a word herein indicates an intention to qualify or change the absolute devise which he had made to her.” The language is no stronger than that in Jauretche v. Proctor, 48 Pa. 466" court="Pa." date_filed="1865-01-25" href="https://app.midpage.ai/document/jauretche-v-proctor-6232392?utm_source=webapp" opinion_id="6232392">48 Pa. 466, that “she is not to divest herself of what I may leave her, until after her death; ” and “ at the death of my wife, what I may have left her, that is to say, the residue, is to be divided,” etc. “The paramount thought,”
Judgment reversed.