Reighard's Estate

253 Pa. 43 | Pa. | 1916

Opinion by

Mr. Chief Justice Brown,

After devising to his wife in fee simple his homestead, together with its contents, the testator, in clearest terms, directed that all the rest of his estate should constitute an active trust in the hands of his executors, to continue for a period of ten years from his death or during the natural life of his wife, if she should survive him for a period of over ten years. If she had elected to accept the provisions of his will, she and the other cestuis que trustent would have received monthly during her life what the will gave them, but she elected to take against it, and, her husband having died childless, she acquired a life estate in one-half of his realty and one-half of his personalty absolutely.

The single question raised by the assignments of error is whether the trust should be declared terminated and the corpus of the personal estate, together with the accrued income, as shown by the account of the executor, distributed among the residuary legatees named in the will. The plain and simple scheme of the testator has become inoperative by his wife’s election to take against his will, so far as its provisions affect her, but no farther. He clearly contemplated the contingency of her election not to accept his testamentary provision for her, for, in directing that $50.00 should be paid monthly during the continuance of the trust to each of two relatives of his wife, he declared that these annuities were to be paid “upon the express condition, however, that my wife accepts the provisions made in this will for her, in lieu of dower, and in the event of her refusal to so accept said provisions, then and in that event the bequests to said Louis Lytle and Harry Eeifsnyder, and their children, hereinabove contained shall be void.” No other provision in the will was to be disturbed by his wife’s election to take against it, and the unavoidable conclusion is that the t'estator’s intention was that all the provisions in the will, except those relating to his wife and her two relatives, should continue unaffected by her election to take against it, Expressio unius, exclusio alterius. By her election to take against the will the widow of the testator destroyed the trust created for her. But how could that election strike down the trust for others created in terms as clear as those which had created the trust for her? The trust created by the testator was not for her alone, but for others, to continue for them during her natural life; and the intention of her husband is not to be thwarted by her refusal to accept the provisions of his will, but is to be given effect under the cardinal rule applicable to every will: Portuondo’s Est., 185 Pa. 472; Gourley’s Est., 238 Pa. 62. Notwithstanding what the widow has done, the clearly expressed intention of her husband must be given effect. During a period fixed by him his beneficiaries, of whom the appellant is one, are not to have any shares in the corpus of one-half of his estate, for his express direction is that it shall be held in • trust for them as long as his widow shall live. His reason for so directing is immaterial, if he created, as he clearly did, an active trust for the appellant and the other residuary legatees: Spring’s Est., 216 Pa. 529.

No direction is to be found in the will of the testator foi* any accumulation of the income of his estate. Any excess income in the hands of the trustees will, under the decree of the court below, be paid to the persons named by the testator as his residuary legatees, one of whom is the appellant, and she is not complaining of this, if the trust is to continue. The convincing opinion of the learned adjudicating judge relieves us from further discussion of the question before us, and the decree may be regarded as affirmed on that opinion at appellant’s costs.