244 Pa. 482 | Pa. | 1914
Opinion by
J. M. Cresson Dickey died October 29, 1908, and. the question brought up to us on this appeal .is whether his widow took his residuary estate absolutely, free from any trusts, under the following clause in his will: “All the residue of my Estate, real and personal of which I shall die seized and possessed, I bequeath absolutely to my beloved wife, Annie Arnot Dickey, desiring that she
Under the words “all the residue of my estate, real and personal of which I shall die seized and possessed. I bequeath absolutely to my beloved wife, Annie Arnot Dickey,” the appellee was given the residue of the testator’s personal estate absolutely, and there passed to her a fee simple in his real estate. What was thus absolutely given to her is not to be cut down by the words which immediately follow, unless they unequivocally show an intention of the testator to reduce the estate given in the first instance. A clearly-expressed purpose! of a testator is not to be overborne by -modifying directions that are ambiguous and equivocal: Sheetz’s App., 82 Pa. 213; Coles v. Ayres, 156 Pa. 197; Post Printing & Pub. Co. v. Insurance Company, 189 Pa. 300; Devine’s Est., 199 Pa. 250. “The rule is well expressed by Strong, J., in Sheets’s Est., 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 ac
The rule laid down in Pennock’s Est., 20 Pa. 268, and since uniformly followed, is: “Words, in a will expressive of desire, recommendation, and confidence are not words of technical, but of common parlance, and are not, prima facie, sufficient to convert a devise or bequest into a trust; and the old Roman and English rule on this subject is not part of the common law of Pennsylvania. Such words may amount to a declaration of trust, when it appears from other parts of the will that the testator intended not to commit the estate to the devisee or legatee, or the ultimate disposal of it to his kindness, justice, or discretion.” While expressions of a desire or wish of a testator as to a specific disposition of his property, standing by themselves alone, may establish a valid bequest or devise, this is not the rule when such expressions are used after the testator has made an absolute disposition of his property. After an absolute bequest or devise has been made, no precatory words of the testator to his legatee or devisee can defeat the estate previously granted: Hopkins v. Glunt, 111 Pa. 287. In Burt v. Herron, 66 Pa. 400, we said, through Mr. Justice Sharswood : “It is undoubtedly true that where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee, unless indeed it appear affirmatively that they were intended to be imperative. The authorities, which are somewhat discordant, were fully examined in Pennock’s Est., 8 Harris 268, and the rule of construction settled
Nothing is to be found in any other portion of the will indicating any intention on the part of the testator to use the word “desire” in the sense of commanding or directing. On the contrary, when the residuary clause of the will is read in connection with the clause immediately preceding it, a. fair inference is that he intended the word “desiring” to be the expression of a mere wish, imposing no obligation upon his wife. In the preceding clause he created a trust for his daughter, Jennie Kendall Dickey, in the following words: “I direct my hereinafter named Executors to pay over and deliver within two years after my decease, to my cousin, S. Kalston Dickey, the sum of Thirty Thousand ($30,000) Dollars, to be by him held in trust and invested and reinvested in first mortgages on productive Keal Estate in the State of Pennsylvania and the interest used for the benefit, comfort and behoof of my beloved daughter, Jennie Kendall Dickey. There shall also be paid to said Trustee for the use of my beloved daughter, Jennie Kendall Dickey, the sum of One Hundred ($100) Dolíais per month after my decease continuing until the said legacy of Thirty Thousand ($30,000) Dollars has been paid, and which shall be considered as additional to said legacy. At the decease of my said daughter, the Thirty Thousand Dollars shall pass to her issue then living, but if she shall leave no issue, said Thirty Thousand Dollars shall pass to the Oxford Presbyterian Church to be by
But two of our own cases are cited in support of the contention that the estate given to the appellee by her husband was impressed with a trust. Neither is authority for such a construction of his will. In the first— Byers’s Est., 186 Pa. 404, — the request of the testator was in the form of á positive direction. His words were: “I direct that my daughter Ida C., married to William H. Bushey, shall invest her share of my estate as a first judgment or mortgage, and to receive the annual interest .of the same during her natural life, and at her death it shall return to such of her children as shall then be living, and to the issue then living of such of them as may then be dead, such issue taking, and, if more tbnu one, among themselves dividing the share or shares which their parent or parents respectively would have taken if then living.” In the other — Stinson’s Est., 232 Pa. 218, — we followed the rule reannounced in the present case as to when precatory words are to be regarded as mandatory, and held that the words used by the testatrix were mandatory, because she meant and intended that one of the attesting witnesses to the execution of her will creating a charity should enter into the very structure of the official organization of that charity, thereby becoming directly interested in it. What was said in that case is authority for, and not against, the view of the learned court below as to the estate which passed to the appellee under the will of her husband.
Judgment affirmed.