Rush's Estate

Citation12 Pa. 375
PartiesRUSH'S ESTATE.
Decision Date04 March 1849
CourtUnited States State Supreme Court of Pennsylvania

Henderson and Williams, for appellants.—The intention of the testator is the guide, and that is to be ascertained by giving to his language the ordinary meaning among the mass of the community: Ward on Leg. 208; 5 W. & S. 256. He has divided the securities on which he desired the investments to be made into the two classes: private, which were to be mortgages only; public, including all the stocks or securities referred to by him, and which is the common meaning of the word. Government loans are not commonly called securities, and other property than what belongs to it, is called public: 2 Hilly. Abr. 158. His meaning on this point is clear. He has confined the executors to the loans, &c., which are here; and then, after enumerating all our government loans, he adds, any other public securities. This loan is certainly styled in common parlance a public security, as the work itself is called a public work, which in one sense it is, being intended to improve a public highway. On no other ground could the legislature authorize the taking of private property for its purposes: 4 W. C. C. 608; Bald. 223. The executors here acted in good faith, and should not be held liable to legatees for a mere mistake in judgment. Twaddel's Appeal, 5 Barr, 15, is conclusive on this point.

T. Sergeant, contrà.—If there had been no direction in the will, such an investment would not have been allowed: Lewin on Trusts, 116, 308, 314; 3 Atk. 44; 2 Dick. 499, n.; 7 Ves. 150; but here is an express direction, and a deviation from it is at the peril of the executors: 2 Story's Eq. § 1276. The testator has enumerated certain classes of securities, all of which are public; and then adds, any other public securities, which means securities of the like kind with those enumerated. The present loan is in no sense public, and to hold it so, will be to obliterate all distinction between public and private securities. The essential distinction between them is, that for the former the public faith is pledged, for the latter individual responsibility. Here there is less than that, for the property of a corporation is alone pledged; that, too private in every sense of the word. It is owned by the stockholders; it carries on a trade for their exclusive benefit, and they alone share in the profits: Bald. 223; 4 Whart. 664; Webster's Dic. Public. That the public is incidentally benefited, is immaterial. There is no instance in which the franchises of a corporation are granted for any purposes, but where there is at least supposed to be some incidental benefit to the public from their exercise. The word is used repeatedly in Acts of Assembly, and this distinction always preserved: Act 29th March, 1832; 14th April, 1835; 16th June, 1836; 4th and 27th May,...

To continue reading

Request your trial
5 cases
  • | Pensyl's Appeal
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 1, 1888
    ... 15 A. 719 Pensyl's Appeal. [Pensyl's Estate.] Supreme Court of Pennsylvania October 1, 1888 . [15 A. 720] . [Copyrighted Material Omitted]. [15 A. 721] . [Copyrighted Material Omitted]. ......
  • Merchants' Loan & Trust Co. v. Northern Trust Co.
    • United States
    • Supreme Court of Illinois
    • April 19, 1911
    ......, Moore & McIlvaine and Isham, Lincoln & Beale, for appellees.CARTER, J.        Appellees, as testamentary trustees of the residuary estate of Marshall Field, deceased, filed their bill in the circuit court of Cook county for a construction of the will of Marshall Field in so far as it ......
  • In re Barker's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 29, 1894
  • Thayer v. Dewey
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1904
    ...The rule in some other states is substantially in accordance with this contention. Ormiston v. Olcott, 84 N. Y. 339;In re Rush's Estate, 12 Pa. 375-378; Ex parte Copeland, Rice's Eq. (S. C.) 69; McCullough's Ex'rs v. McCullough, 44 N. J. Eq. 313, 14 Atl. 123. But in these states trustees ar......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT