McClure's Estate

221 Pa. 556 | Pa. | 1908

Opinion by

Mr. Justice Mestrezat,

We need not determine whether Caroline McClure took an absolute estate or a life estate with a general power of appointment in the one-half of the residuary estate of Elizabeth ET. McClure which is the subject of this controversy. If, as the court below held, Caroline EL McClure took an estate for life with the power of consumption and power of appointment over the one-half of the residue of her mother’s estate, that one-half of the estate, by virtue of the exercise of the power of appointment, became vested in and was distributable to the six first cousins of Caroline EL McClure, and was properly awarded to them by the court below. The learned judge has fully vindicated his conclusions in the opinion disposing of the exceptions filed to the report of the auditor.

As in the interpretation of all wills, the intention of the testator in this case must be ascertained from the entire instrument, and when ascertained must be carried into effect. No canons of interpretation need be invoked here to determine the intention of the testatrix. The intention of Caroline EL McClure in disposing of the interest or estate given her by her mother and over which this controversy arises is perfectly clear from the language she has used.

Elizabeth EL McClure, by her will, directed that the proceeds of the residue of her estate should be invested by her executrix for the sole use and benefit of her daughter, Caroline H. McClure, during the latter’s lifetime, so that her daughter should receive the annual interest arising therefrom and also so much of the principal as might be necessary or requisite to maintain her daughter, and then provided as follows : “ And further I do direct that my said daughter, Caroline H., shall have full power to dispose of by will — by gift or in any other way of the one-half of such moneys, credits or rights or such investments into which they may have been converted at the time of her death or prior thereto.” The remaining one-half of her residuary estate she directed to be divided among her grandchildren. Caroline H. McClure was appointed executrix of her mother’s estate. At the date of the death of Elizabeth H. McClure, her residuary estate consisted of a single item, a bond conditioned for the payment of $10,850.56. One-half of that sum is the money now in controversy. Caroline H. McClure is dead, and by her will, disposed of the estate given her by her mother. In the sixth clause of her will she directs that the proceeds of her notes, etc., after the payment of her debts, collateral inheritance and other taxes; shall “ be paid over to my nephew Humes Hall if he shall be living at the time of my decease subject to all of the provisions and conditions of this my last will and testament.” In the seventh clause of the will she gives to her nephew, Humes Hall, “ if he be living at the time of my decease, all of the interest in the estate of my mother Elizabeth H. McClure, deceased, devised and bequeathed to me with power in me to dispose of the same, either by will or gift, being the one-half of the residuary of my said mother Elizabeth H. McClure.” Immediately following the seventh clause of the will, she provides in a clause she designates “ Item ” “ that in case my nephew Humes Hall shall die prior to my own decease or in case he shall die before my estate is fully settled up by my executor hereinafter named and before the proceeds of my said estate shall have been paid over to my nephew Humes Hall as herein provided then and in that case I do direct that all of my estate together with all interest in and a right to devise will or give the same arising in or through the will of my mother Elizabeth H. McClure deceased which shall then remain in the custody of my executor and which has been herein bequeathed and devised to my nephew Humes Hall shall be given, devised, and bequeathed and by my executor paid over to my six first cousins,” (naming them).

In ascertaining the intention of Caroline H. McClure as to the disposition of the estate which she received from her mother, her whole will must be considered. In the sixth clause it will be observed that the proceeds of her notes, etc., go to her nephew Humes Hall if he be living at the time of the testatrix’s decease, “ subject to all of the provisions and conditions of this my last will and testament.” In the following, or seventh, clause the estate she had received from her mother was given to the same nephew “ if he be living at the time of my decease.” Both of these clauses, however, are followed by “ Item,” which is subsequent to and controls both of the clauses immediately preceding it. In “ Item,” the testatrix changes the time of the vesting in her nephew of both her own estate and the estate she received from her mother. By clauses six and seven of her will Humes Hall is to have the estate she owned in her own right' and the estate she received from her mother with power of appointment, if he be living at the death of the testatrix. By “ Item,” however, the estates given him immediately preceding did not vest in him if he died prior to the decease of the testatrix, or before her estate was fully settled up by the executor and the proceeds had been paid to him. Humes Hall died within a few months' after Caroline H. McClure’s death, without having received anything under the latter’s will. This provision of the will was not simply a postponement of the payment of the proceeds of Caroline H. McClure’s estate or of the estate she had received from her mother, but it was a postponement of the vesting of both estates. In other words, in the language of the cases, the time of enjoyment by the legatee of the bequest was annexed to the gift and not to the payment of it. Humes Hall took no interest or estate under the will of Caroline H. McClure unless he was living when the estate was “fully settled up” by the executor and the proceeds were paid over. If the executor had paid over any part of the estate to Humes Hall prior to the time it was “ fully settled up,” it would not have been a good payment, and the executor would have been subject to a surcharge at the instance of the six first cousins. Of this we think there can be no doubt. If the language of the will is to have its ordinary meaning, the date of the vesting of the estate in Humes Hall is left in no doubt, and any payment of any part of the estate to him prior to the date of its vesting would have been wholly unauthorized and a devisavit for which the executor would have been responsible.

There is no merit in the suggestion or argument that “ Item ” does not cover or include that part of Caroline McClure’s estate which she received from her mother. It includes both her own estate and the estate she received from her mother, and over which she was given a general power of appointment. In case her nephew Humes Hall died prior to the settlement of the estate it is then provided in “ Item ” that “ All of my estate together with all interest in and the right to devise will or give the same arising in or through the will of my mother Elizabeth H. McClure deceased which shall then remain in the custody of my executor and which has been herein bequeathed and devised to my nephew Humes Hall shall be given devised and bequeathed,” etc. It will thus be observed that there is no foundation whatever for the contention that this clause of the will did not dispose of the estate which Caroline H. McClure received from her mother. It does so in terms, and is clearly an exercise of the power conferred upon the testatrix by her mother.

The learned judge of the orphans’ court has so fully discussed this branch of the case that nothing more need be said here. The other assignments are without merit.

The decree is affirmed.