4 Whart. 389 | Pa. | 1839
The opinion of the Court was delivered by
All the parties, concerned seem, to have been dissatisfied with the decree of the Court below, and each, therefore, has taken an appeal. The trustees, Joseph Morris and Andrew Geyer, think themselves aggrievéd by it, because the claim made by them for compensation for their services in the execution of the trust was partly disallowed. From all that has been shown in regard to this, we are not enabled to say that the sum allowed to the trustees by the decree of the Court, is not a' reasonable cpmpensation for their services rendered, and the expense incurred by them, in the execution of that part of the trust, on account of whieh it was particularly allowed. It has, however, been objected by the other parties, that the sum allowed to the trustees for their trouble, is too great; but nothing has been adduced to satisfy us, that this objection is well founded. We therefore affirm the decree of the Court below, so far as regards the allowance made thereby to the trustees, in order that they might be recompensed for the attention and services given by them in the execution of that part of their trust, which has given rise to the present controversy. , '
Mary E. Hearttie and Horace Ramberger, a minor, and only child and representative of Anna Susanna Ramberger, named in the will of the testator, and now deceased, beside objecting to the amount of the compensation allowed to the trustees, object also to the decree of the Court below, because the Court did'not direct the whole of the surplus money arising from the sale of the two ground-rents, upon which the mortgage- rested, after satisfying the amount of the debt therein mentioned with the interest, charges and costs accrued thereon, to be invested in trust for the Jike uses and subject to the like limitations, as are declared and directed by the testator,in his .will -in regard to the ground-rents themselves, as long as there should be no occasion to sell them; whereas the complainant, Margaret Lucretia Nathans, beside excepting to the amount of the compensation allowed to the trustees, excepts to the decree of the Court, on the ground that the whole of the said surplus, was not decreed and given by the Court to her, for her sole arid separate use absolutely, in conformity to that clause in the will of the testator, which directs in these words, “ And if there should then remain any surplus of the said proceeds of sales, after pkyment of the said debt and interest, and costs and charges aforesaid, then to pay over such surplus into the hands of my said grand-daughter, Margaret Lucretia Nathans, (the complainant) to and for her sole and separate use and benefit, excluding her. husband from all right and interest therein, so that the. same or any part thereof, shall not be in his power or disposal, or subject to his control or intermeddling, or liable in any
But it is said, that the latter part being only indicative of the particular intent of the testator, ought not to be permitted to operate so as to defeat the general intent, which, it is alleged, is manifested throughout the will. This rule, although said to have a governing influence in the construction .of wills, can have no application here, for the intention displayed in that part of the will, under which the defendants Hearttie and Ramberger claim, does not accord seemingly more with any genera] intention that may be manifested by the testator iñ his will, than the intention disclosed in the, latter clause does, under which Mrs. Nathans claims. Nordoes it appear that either of those parts can be considered as running counter to any genera] intention that can be collected from íhé whole tenor of the will: they are not only cqnsistent with each other,. but would appear to be so with the'general scope and design of'thewill.
It is also said, that the testator could not hav.e intended that so large a surplus, as there is here, should be given to Mrs. Nathans absolutely, for her sole and separate use, as directed in the latter clause of the will; that, at most, he could only have intended some small inconsiderable sum. of money; supposing that in no event, upon a sale of the ground-rents, for the purpose of paying off the mortgage, it could be more. This, if not fanciful, 'is at best merely conjectural ; and would therefore be 'a very unsafe basis to found a construction upon. If such had been his intention, nothing could have been more easy, than to have said so, and to have put an express limit upon it; but he has not done it, neither has he used any words from which it is possible to draw the conclusion that such was his intention. Indeed it may well be doubted, as has been already suggested, whether he would have considered a surplus, of a trifling amount, of sufficient importance to make it either necessary or expedient to give it in such a manner to Mrs. Nathans, as to exclude her husband from the right of receiving it. It may be, that rather than pronounce a will, or a devise, or bequest in it, void for uncertainty, what seemed from the will itself, to have been the probable intention of the testator, would be deemed sufficient to prevent it from being declared a nullity; but I apprehend that fancy or bare conjecture, ought never to be permitted to supply the want of evidence of intention ; and certainly never can be considered sufficient to set aside a clear and positive provision in a will, expressed in terms of definite and precise meaning, and therefore susceptible of but one construction. The whole of the' surplus here then is given to Mrs. Nathans, for her sole and separate use absolutely, without any qualification or limitation whatever, either as to its amount, duration, or any thing else attending it, yet the testator was certainly
Decree accordingly.