Jauretche v. Proctor

• Decision Date: 25 January 1865
• Citation: 48 Pa. 466
• Court: Pennsylvania Supreme Court
• Parties: Jauretche <I>versus</I> Proctor.

48 Pa. 466

Jauretche versus Proctor.

Supreme Court of Pennsylvania.

January 25, 1865.

CERTIFIED from the Supreme Court at Nisi Prius.

COPYRIGHT MATERIAL OMITTED

C. Guillou, for plaintiff in error.—The testator's intentions are to be found within the four corners of the will: Hunter's Estate, 6 Barr 107. No rule of law has a more ancient origin than that if a testator expresses his intention defectively, by not using technical and artificial terms, yet, if his intention can be collected from his will, the law, however defective the language may be, will construe his words according to his intention.

Can there be any doubt as to M. Jauretche's wishes? The third article is a clear prohibition against her parting with the property in any way during her life, and the fourth is equally clear in forbidding any testamentary disposition, since, at her death, the property passes to the children.

The 19th section of Act of 8th April 1833 (Brightly's Purd. Dig. 1017), provides that "all devises of real estate shall pass the whole of the testator's estate without words of inheritance, unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate." The plaintiff submits that it does appear by the devise over and otherwise of the will (viz., by 3d article), that the testator did not intend to give the fee.

The word "residue," in 4th article, is synonymous with "surplus," as defined in Pennock's Estate, 8 Harris 268, and designates whatever may be left unconsumed or undisposed of by the widow under the previous devise to her, and her lawful restricted enjoyment of the property thereunder. It does not enlarge the devise, nor in any way remove the restrictions imposed. In ascertaining what "residue" the testator intended that his children should receive, the first element of consideration is the prohibition against any alienation from them by deed or by will.

The law does not lean towards, but resists a construction by which the inheritance is to be taken from the heirs: French v. McIlhenney, 2 Binn. 19.

Devise of all testator's property, real and personal, to his wife, during her natural life, to do and dispose of as she may think best, only confers a life estate: Fisher v. Herbell, 7 W. & S. 63.

G. W. Biddle, for defendant in error.—The judgment in favour of the plaintiff is right, for the following reasons: — The whole plan of the will shows the intention of the testator to confer the absolute ownership of his estate upon his wife. In the 1st article he names her the sole and only heir of all his property, present and future, as well realty as personalty, of which he may be the owner at the time of his death. Even before the Act of 1833, this language would have conferred a fee upon Mrs. Jauretche: Ferguson v. Zepp, 4 W. C. C. R. 645; Dice v. Sheffer, 3 W. & S. 419. Of course, as to wills written since the Act of 1833, such words would be construed much more strongly in favour of the devisee: Culbertson v. Daly, 7 W. & S. 195.

What is there, in the subsequent passages of the will, to impair the effect of this general devise? In the 2d article the testator expresses a desire that his estate at Cambo should not be sold, if his wife can do otherwise. So far from being restrictive, this plainly recognises the absolute proprietorship of the wife, and merely expresses a preference, to be followed or not, as she may think best under all the circumstances.

The 3d article is obscure; but in its plain reading, it is not only compatible with the absolute ownership of the wife, but incompatible with any other meaning. It is as if he had said, "I give you all my estate, but don't divest yourself of it until after your death, when you can leave it as you think proper." He seems to have been apprehensive that his widow might be induced to part with some of the estate to her disadvantage.

That this language was merely directory, and not mandatory, is plain from the 2d article. Had he meant to restrict his wife positively from selling, he would not have expressed a wish that the Cambo plantation should not be sold if she could do otherwise. Again: in the 4th article, at the death of his wife, what he might have left her, that is to say, the residue, was to be divided equally among the children. What is the import of residue? Surely that which should be left after she had spent and used what she wanted. On this point we have high authority in our own state.

In Pennock's Estate, 8 Harris 268, the construction of Mr. Pennock's will was before the Supreme Court for the third time, and finally settled. It was there held that, where a testator devised to his wife his real estate for life, and his personalty absolutely, "having full confidence she will leave the surplus to be divided at her decease justly among my children," the widow took the absolute ownership in the personalty, overruling McKonkey's Appeal, 1...