Sellers v. Myers

56 Pa. Super. 207 | Pa. Super. Ct. | 1914

Opinion by

Rice, P. J.,

Where the testator gives the first taker the estate, or what is practically the same thing, the power to consume the whole, and yet manifests his expectation, if not his intention, that it shall not all be consumed, the question arises whether the will has limited the estate given, or has attempted to deprive the estate given of some of its essential legal properties. It is along this line of distinction that the many cases involving the construction of wills similar to the one in question must be classified: Allen v. Hirlinger, 219 Pa. 56. It was said, in the same case, that while similar language has been differently construed in different wills, yet the difference has been in the application, not in the guiding principle. “The effort has uniformly been to discover the actual principal intent of the testator and where that has been clear there is no case in which it hg,s been departed from.” Applying this guiding principle in the present case, we are to seek the actual intent of the testatrix, not by treating the first clause of her will as paramount and controlling, but by considering all the clauses as a connected whole and by presuming, in the absence of anything in the will to give rise to a contrary presumption, that all of them were deemed by her necessary to express her full intent. We think it clear that her will, thus viewed, manifests an expectation on her part that the whole estate, realty and personalty being blended in. the gift, might not be consumed by her husband in his lifetime, and also manifests an intention that what should be left after his death should go to certain other persons. That such construction of her will would involve no implication of intention on her part to deprive the estate given to him of any of its legal incidents, but would involve only a lawful limitation of the estate given, is so well shown in the opinion filed by the learned judge below, and in the cases cited and reviewed therein, that we do not deem it necessary to pursue the discussion of that precise question further. We shall only add a word as to the question whether the language of the second clause of the will is precatory or mandatory. If, in disposing of the one-half of the unconsumed part of the estate which should be left, she had said “I direct it to go,” instead of “I want it to go,” there would be no room for argument that the construction above stated is not the correct one. To that extent the case cited by the learned judge, Fassitt v. Seip, 240 Pa. 406, is conclusive. But the word “want” is often used in the common speech of people to command and to direct, and was doubtless used in that sense by the testatrix. It does not express a mere wish or desire that her husband should dispose of the unconsuxned part of the estate in a certain way, but is plainly expressive of her will and intention that it should go in a certain way; and, according to many authorities cited in the appellee’s brief, it is properly to be treated as a mandatory and not a precatory expression. For the foregoing reasons, taken in connection with the opinion of the learned judge of the common pleas, the judgment must be affirmed.

The judgment is affirmed.