Burt v. Herron

• Decision Date: 03 January 1871
• Citation: 66 Pa. 400
• Parties: Burt <I>et al. versus</I> Herron's Executors.
• Court: Pennsylvania Supreme Court

66 Pa. 400

Burt et al. versus Herron's Executors.

Supreme Court of Pennsylvania.

November 5, 1870.

January 3, 1871.

November 5th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 150, to October and November Term 1869 J. F. White, for plaintiff in error.—If the will be doubtful, evidence to show the condition of the testator's family was pertinent: Marshall's Appeal, 2 Barr 388; Stoner's Appeal, Id. 428; Rewalt v. Ulrich, 11 Harris 388; Earp's Will, 1 Parsons 457; Jones v. McKee, 3 Barr 496; 2 Phillips on Ev. 637; 1 Redfield on Wills 674, 686. Words of desire, &c., are imperative unless it clearly appears that they are not so used: 1 Jarman on Wills 352; 1 Redfield on Wills 174, 175; 1 Williams on Exrs. 87; 10 Bac. Abr. 539; Coates' Appeal, 2 Barr 129; Jackson v. Jackson, Id. 212; Pennock's Estate, 8 Harris 268.

T. MacConnell (with whom was W. C. Aughinbaugh), for defendants in error.—Under the Statute of Frauds, Act of April 26th 1855, § 1, Pamph. L. 308, Purd. 497, pl. 4, the agreement to pay the debt of another must be certain in itself without recourse to parol evidence. The expression in the will is too indefinite to create a legacy: 1 Redfield on Wills 176, 177, 697, 698; 2 Story's Eq. Jur., § 1069-1073. The plaintiffs as legatees could enforce their claim only in the Orphans' Court: Ashford v. Ewing, 1 Casey 213; Black v. Black, 10 Id. 354; 2 Redfield on Wills 284.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

It is undoubtedly true that where a testator makes an absolute devise or bequest, mere precatory words of desire or recommendation annexed will not in general convert the devisee or legatee into a trustee, unless indeed it appear affirmatively that they were intended to be imperative. The authorities, which are somewhat discordant, were fully examined in Pennock's Estate, 8 Harris 268, and the rule of construction settled upon what seems to be the most reasonable foundation. But the industry and learning of the able counsel for the defendants in error have not succeeded in finding any case where words expressive of desire, request or recommendation as to the direct disposition of the estate have not been held to be sufficient. Should a testator say merely, "I desire A. B. to have a thousand dollars," it would be as effectual a legacy as if he was expressly to direct or will it, or were to add, "out of my estate," or that it should be paid by his executor. The reason is obvious. A will, in its very nature, is the disposition which the testator desires to have made of his estate after his death. All the expressions in it indicative of his wish or will are commands. It is different when, having made a disposition, he expresses a desire that the legatee or devisee should make a certain use of his bounty. It would have been so had a legacy been left to Herron Brothers, with a desire expressed that they should pay their debts. It would not have constituted them trustees of the fund as to their creditors. They could have paid some, but when the fund was exhausted the rest would have had no claim. None of them would have had any right to come upon it except as the property of their debtors. When the testator in this case declared: "I desire that all my just debts and those of Herron Brothers be paid as soon as conveniently can be after my dissolution," it was his will that this should be carried into effect by his executors in the only way in which he could expect it to be done — out of his estate. If it had been intended as the mere expression of a desire that Herron Brothers should pay their own debts, it was singularly out of place and...