McCauley's Appeal, 93 Pa. 102

McCauley's Appeal

93 Pa. 102 | Pa. | 1880

Mr. Justice Mercur

delivered the opinion of the court May 2d 1880.

William Hardy and Jane Hardy, his wife, each procured a policy of life insurance in favor of the other, and payable to his and her respective executors, administrators or assigns. He died first, whereby the policy on his life became payable to her. She after-wards died, and the money secured by the policy on her life was paid to the executors of her deceased husband. By her last will she devised this policy to Jane Stewart and Sarah Ann Stewart. On a distribution of the funds in the hands of the executor of William Hardy, the appellants claimed the amount paid on this policy for the benefit of the legatees of Jane Hardy. They claimed it under a clause in the will of William Hardy, which reads thus: “ I give, devise and bequeath unto my beloved wife, Jane, all my estate, both real and personal, of whatsoever kind, and wheresoever the same may be at the time of my decease, for and during the term of her natural life, with full power and authority to appropriate to her own use such of the personal property as to her shall seem meet.” In a subsequent clause, he declares, “ after the death of my said wife, I give, devise and bequeath all the rest, residue or remainder of my estate, both real and personal, unto my son, John Hardy, his heirs and assigns for ever.” By codicil, he provides, in case of the death of John, before the death of testator’s wife, Jane, without leaving lawful issue surviving, then devise over to testator’s daughter, Esther.

*106We may concede under the authority of Deginther’s Appeal, 2 Norris 337, that when Jane died the amount of insurance on her life became a part of the estate of her deceased husband, and was to be disposed of according to his will. We are not, however, able to discover any authority for her to dispose of it by her will, or that will give it to her executors. Under the will of her husband she took during life only, with the additional power to appropriate to her own use such of the personal property as she might choose, and the residue and remainder were devised over. The property was not given to her absolutely, nor was she authorized to dispose of it by will. The evident intent was that she should have no more of the eorjms of the personal estate than she should elect to appropriate to her own use. That election and appropriation must necessarily have been made during her life to be for “her own use.” In so far as she did not thus appropriate it, it passed, on her death, to the other devisee named.

We think it would be a forced inference to assume that by authorizing her to appropriate personal property to her own use, that the testator intended to include money which could not be obtained until after her death. He manifestly referred to such personal property as she could at any time reduce to her actual possession, and use, sell or convert the same so as to appropriate it, or the proceeds thereof, to her use and enjoyment. If, however, during her life, she had actually made any sale or transfer of the policy, thereby indicating an intention to appropriate it to her own use, a more difficult question would arise. But she did no such thing. It remained unchanged and unappropriated, and precisely in the same condition in which it had passed under the will of her late husband. The attempted devise which could have no effect until after her death, was not such an appropriation for her use as was contemplated by her husband’s will. The learned judge was entirely correct in holding that the residuary legatee under the will of John Hardy, was entitled to the proceeds of the policy.

Decree affirmed and appeal dismissed, at the costs of the appellants