Allen v. Hirlinger

• Decision Date: 25 June 1907
• Docket Number: 199
• Citation: 219 Pa. 56,67 A. 907
• Parties: Allen, Appellant, v. Hirlinger
• Court: Pennsylvania Supreme Court

67 A. 907

219 Pa. 56

Allen, Appellant, v. Hirlinger

No. 199

Supreme Court of Pennsylvania

June 25, 1907

Argued May 23, 1907

Appeal, No. 199, Jan. T., 1907, by plaintiff, from judgment of Superior Ct., Oct. T., 1905, No. 205, affirming judgment of C.P. Lancaster Co., April T., 1906, No. 9, for plaintiff on case stated in suit of Leonora Allen v. J. W. Hirlinger. Reversed.

Appeal from the Superior Court. See 33 Pa.Super. 113.

The facts are stated in the opinion of the Supreme Court.

Error assigned was the judgment of the Superior Court.

Judgment reversed and judgment directed to be entered for the plaintiff on the case stated.

Wm. R Brinton, for appellant, Leonora Allen.

Wm. S. Furst, for appellee, J. W. Hirlinger.

C. E. Montgomery and J. W. Denlinger, for J. W. Denlinger.

Before MITCHELL, C.J., FELL, BROWN, POTTER and ELKIN, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The testator directed the payment of his debts and a small legacy to his daughter and then devised the residue of his estate to his wife for life or widowhood with permission to use and live therefrom and to have the full ownership, the same as he had himself during his life, and at her death whatever should remain to be given to his daughter.

The class of wills to which this belongs present inherent difficulties in construction by their indication of an intent not accurately defined in the testator's own mind, if not of double and to some extent conflicting intents. The testator gives to the first taker the estate, or, what is practically the same thing, the power to consume the whole and yet manifests his expectation at least if not his intention, that it shall not all be consumed. These two purposes, manifestly present in his mind, but not accurately defined, and their possible conflict perhaps not perceived at all, at once raise the question, has the will limited the estate given, or has it attempted to deprive the estate given of some of its essential legal properties? The cases must be classified on this line of distinction. In Good v. Fichthorn, 144 Pa. 287, it was said: "The true test of the effect of language apparently at variance with other parts of the devise, is whether the intent is to give a smaller estate than the meaning of the words of the gift standing alone would import, or to impose restraints upon the estate given. The former is always lawful and effective, the latter rarely, if ever; the first, because the testator's intention is the governing consideration in the construction and carrying out of a will; the second, because even a clear intention of the testator cannot be permitted to contravene the settled rules of law by depriving any estate of its essential legal attributes." 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 has been departed from. It has been very generally observed that the testator, inops consilii, rarely observes or even appreciates the distinction between the two classes of cases. With the general idea in his mind that he can dispose of his property as he may please, he fails to see that he cannot make a gift and at the same time withhold it or its essential attributes. Hence the numerous cases where the effort is made to give the first taker, especially a widow, the full authority and enjoyment of the property and yet to dictate what shall be done with it in her life or particularly after her death. As the first donee is usually the principal object of the testator's bounty the presumption in case of conflict is always in his favor. Hence there is a strong trend, notably in the later cases, to construe the first gift as a fee, and the subsequent words, which appear to be repugnant, as either merely precatory, as in Good v. Fichthorn, 144 Pa. 287 and Boyle v. Boyle, 152 Pa. 108, or as expressive of a particular and subordinate intent which must fail as an attempt to deprive the estate given of its legal attributes, as in Jauretche v. Proctor, 48 Pa. 466; Levy's Estate, 152 Pa. 174; Evans v. Smith, 166 Pa. 625; Gilchrist v. Empfield, 194 Pa. 397 and Huber v. Hamilton, 211 Pa. 289.

A few cases, notably Fox's Appeal, 99 Pa. 382 and Follweiler's Appeal, 102 Pa. 581, are frequently cited as sustaining contrary views to those here expressed, but they do not. While there is room for difference of opinion as to the application there is no departure from the guiding principle of endeavoring to ascertain the testator's primary or main intent. The very first sentence of Chief Justice SHARSWOOD'S opinion in Fox's Appeal is that "every will is to be construed from its four corners to arrive at the true intention of the testator." In neither that case nor Follweiler's Appeal was there any direct or express...