68 Pa. Super. 529 | Pa. Super. Ct. | 1917
Opinion by
The question involved in this appeal is single and simple of comprehension. It does not follow, however, its correct solution may not be attended with some diffi-culty real or apparent. The action was scire facias sur mortgage. The defendants claiming to be the real owners of the property covered by the mortgage, asked and obtained leave to intervene pro interesse suo. There was an affidavit of defense filed. There followed a rule for judgment for want of a sufficient affidavit, which was discharged. The plaintiffs appeal. The defense set up was the mortgagors who were the executrices of the will of one John W. Miller, were without power to execute the said mortgage and, therefore, the plaintiffs could recover nothing because of it. In approaching the solution of the question of law thereby raised, we properly assume not only that every fact duly averred in the affidavit is true, but also that the affiants have stated their case as strongly in their own favor as their knowledge of the question in controversy would permit them to do.
The material facts are these: John W. Miller, being seized of both real and personal estate, died in 1900 testate. In. the same year, letters testamentary were
After directing in the first clause the payment of his debts and funeral expenses, he continues in the second clause as folloAvs: “All the rest, residue and remainder of my estate Avhether real, personal or mixed, I give, devise and bequeath unto my beloved wrife, Catharine Miller, to have and to hold the same to her during all the term of her natural life. Third. After the death of my said wife, I give, etc., one equal third part of my said residuary estate unto the issue of my son, John B. Miller, now deceased,” and in like terms the remaining two-thirds to other children or their surviving issue. The fourth clause creates the power of sale directly in controversy. We quote it: “I hereby authorize and empoAver my executors hereinafter named to sell and dispose of any part or all of my said estate, real or personal, either at public or private sale, and fot such price or prices as they may deem proper, and for such purpose to' sign, seal, execute and\ deliver to the purchaser or purchasers thereof, good and sufficient deed or deeds in fee simple, or for any less estate, without any lia
It cannot be doubted that the power thus conferred was broad enough to authorize the execution of the mortgage in question. We do not understand anyone to contest that proposition. That in the attempted execution of it during the lifetime of the widow there is no evidence of any violation of the law against perpetuities, appears to be conceded. That the widow of the testator was the first and chief object of his bounty, could not be denied. That the testator must have had some object in giving to those who were to execute his will the full discretionary power indicated by the clause quoted and that in the construction of his will, that power can neither be excluded or ignored, would appear to be beyond debate. That there was no devise of his real estate, qua real estate, either to his widow for life or in 'remainder to his children, is apparent from the most casual reading of the will. Finally, that there was no specific expressed reason for the limitation of the power given, the language of the will itself determines.
In cases of this character, precedents are to be studied to obtain a just conception of the principles, necessarily general, which should apply in the construction of all doubtful wills. But as it is the rarest of occurrences that two individual wills should be identical in terms, it follows that in the construction of any particular one, a well-established principle cannot be correctly applied except as it may be pertinent to the particular situation created by that will. Now let us assume, with the court below, that the broad legal view with which a court should approach the consideration of the proper construction of the power contained in the will before us, is well éxpressed by the Supreme Court in Fidler v. Lash, 125 Pa. 87, in the following language: “No principle is better settled than that when the object for which a
Without attempting to review or analyze the many authorities to which we are referred in the careful opinion of the learned court below and in the argument of counsel, we think we should point out some of the elements that differentiate the case at bar from our own case of Schenck v. Clyde, 53 Pa. Superior Ct. 652. We adhere to the statement of the governing legal proposition contained in the opinion in the case cited: “It is true, the power conferred is without any express limitation of time within which it should be exercised. It must also be agreed that the language quoted defining the purposes for which the power might be lawfully exercised is general. But it does not follow from these facts that the executor named in the will, or a succeeding administrator de bonis non, might, at any indefinite time after the death of the testatrix, sell and convey the property without any regard to the nature of the power conferred and the purposes for which it should be exercised. The power conferred must necessarily be construed in the light shed by the will on the purpose of the testatrix in conferring it.” In the will then being considered, the testatrix devised her real estate, qua real estate, to her husband during the term of his natural life, and after his death the same real estate was devised over: In the case at bar, as we have already pointed out, there was no such devises either to the life tenant or to those in remainder. In the power conferred by the
It appears to us the distinction between the two cases is thus plainly marked. We have examined all of the authorities referred to in the opinion of the learned court below and in the paper books of counsel. We discovered no one of them of which in our judgment it can be correctly predicated the conclusion we- have reached is not well grounded. We are, therefore, constrained to reverse the order of the court below, discharging the rule for judgment for want of a sufficient affidavit'of defense.
The order of the court below, discharging rule for judgment-, is reversed; the rule is reinstated and the record remitted to the court below writh direction to enter judgment for the plaintiffs, unless legal or equitable cause to the contrary be shown.