In re Pennock's Estate
Decision Date | 27 January 1853 |
Citation | 20 Pa. 268 |
Parties | In the matter of Pennock's Estate. |
Court | Pennsylvania Supreme Court |
THIS case was brought into the Supreme Court from the Orphans' Court of Chester county. The argument in 1850 resulted in the opinion and decree reported in the case of McKonkey's Appeal, 1 Harris 256, &c. The case was sent to a master, to whose report exceptions were taken, and after argument, the opinion of the Court, hereinafter stated, was delivered by LOWRIE, J.
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P. S. Smith, H. J. Williams, and T. S. Bell were for appellants. —It was contended that the decision in Coates' Appeal, 2 Barr 129, had been virtually overruled by the decision in McKonkey's Appeal, 1 Harris 253. In the former it was denied that the widow had any right to the corpus of the bequest, but that it was to be preserved undiminished; whilst, in the latter, it was ruled that she had an absolute right to dispose of any part of it, and that a trust existed only to the surplus undisposed of at her death. That the law as to the operation of words of recommendation, confidence, or request, attached to an absolute gift of personal estate, has, in late times, varied from the earlier authorities. That, in recent cases, the gift has been held to be uncontrolled by the request or recommendation made or confidence expressed: 64 Law Lib. 262; 2 Story's Eq. 1067-69; 72 Law Lib. 348; 5 Law and Eq. Rep. 49.
The word "absolutely" was inserted, not as requisite to describe the quantity of interest which the widow was to take, but to indicate the actual manner in which she was permitted to use it. Reference was made to Doe v. Simpson, 5 East 172; 4 Bing. 505; 2 Philips's Ch. Cases 196 (22 Eng. Ch.). In the present case the words passed absolute uncontrolled property.
In the last clause of the codicil the testator spoke of the confidence he had reposed in his wife, but without referring to it as of binding or controlling obligation.
J. J. Lewis and J. M. Read, for appellees.—It was alleged to be unreasonable to limit the term "surplus" to what remained unchanged at the death of the widow, as this construction would have put it into her power, by changing the fund, to defeat the trust.
It was contended that the decision in Coates' Appeal was not changed by the decision in McKonkey's Appeal, and that it had been decided, in the former case, that the widow was a trustee of the whole balance of the estate, after the payment of debts, legacy, &c., for the benefit of the testator's children. That, whatever was her power to discriminate among them in the distribution, she was a trustee of the estate remaining at his death, to be accounted for and distributed at her death in certain shares among the children. The property was theirs in shares equal or unequal. That it was not intended by the decision in McKonkey's Appeal to overrule or change such decision. It was decided, in the latter case, that the power to discriminate existed in her, but that it was not executed, and that therefore the statute of distribution must furnish the rule for the division of the estate.
It was further contended that Chief Justice GIBSON did not intend to say that the power was applicable only to the surplus remaining after the widow had disposed of such part of the estate as her caprice dictated, for then the trust was uncertain; and it was admitted that certainty as to the subject was one of the requisites to the existence of a trust of this nature. It was alleged that he did not design to question this settled rule of construction. It was remarked that on the argument of McKonkey's Appeal, no question was raised as to the amount of the trust fund. That it was assumed to have been definitively settled by the former decision.
It was also remarked that the questions as to the nature of the bequest were closed by the decision in Coates' Appeal, and therefore they were not discussed at this time, on the part of the appellees.
The opinion of the Court was delivered, January 27, 1853, by LOWRIE, J.
This case has already been twice before this Court, and the action of the Court on those occasions is reported in Coates' Appeal, 2 State R. 129, and in McKonkey's Appeal, 13 Id. 253. In both those instances, the will of Isaac Pennock has undergone the construction of this Court, in so far as it relates to the rights here in controversy; and now, when the cause comes on for final determination, we are asked by the appellants to hear them again on their rights under that will, before the door of justice is for ever shut against them.
We have therefore heard and reheard, before a full Court, the argument which the parties have thought proper to present on the original question, partly because we could not say that the question was conclusively settled by an interlocutory order, and partly because it is impossible to deny that there is an irreconcilable discrepancy in the two opinions and orders heretofore announced in this very cause. We have given to the question a very careful consideration, and are now prepared to pronounce the judgment which is, in our opinion, demanded by the law.
For the purpose of introducing this question in its general aspect, we need to state no more than that Isaac Pennock devised to his wife Martha all his real estate for life, and all his personal estate "absolutely, having full confidence that she will leave the surplus to be divided at her decease justly among my children." The mother is now dead, and the children claim that the bequest of the personal estate was a trust for their benefit, and have filed their petition against their mother's executor for an account. The argument in support of the petition is that the words which I have quoted from the will are of a technical character, and do of themselves import a trust, and that such is here the proper construction of them, unless there are other expressions controlling them and showing a contrary intent.
Certainly the principles of equity are part of our common law. It is the very essence of common or customary law that it consists of those principles and forms which grow out of the customs and habits of the people. It is therefore involved in its very nature that only so much of the English law as is adapted to our circumstances and customs is properly recognised as part of our common law. This same principle is most emphatically involved in the cardinal maxim of all common law, cessante ratione legis, cessat et ipsa lex.
The technical effect insisted upon as belonging to the words already quoted, having never received a judicial sanction in this state until the first opening of this cause, and no rights having ever been finally decided according to it, the question is still fairly open for consideration whether, under our law, these words have any such technical character. It is of course a consideration of some weight, that, besides our provincial existence with many laws and institutions peculiar to ourselves, we have existed as an independent state for three-quarters of a century without learning that such words have any technical meaning by our law, or are to be construed differently from words of common parlance.
It is unquestionable that such modes of expression were formerly used in the Roman and in the English law in order to create a trust, and it was founded on good reason; but if that reason had passed away before the settlement of this country, then the rule which depended upon it was not imported as part of the law which we brought from the mother country. That it remains of any force in England, after the reason of it has ceased, is not surprising; for it is a common fate of institutions to outlive the causes which gave rise to them, and thus very often the form survives the principle which it was designed to express.
It is acknowledged that the rule by which a trust is raised out of such words, was imported into the English from the Roman law. Its origin, therefore, in the Roman law, is a relevant subject of inquiry; for if we find it arising there, not from the ordinary meaning of the words, but under the constraint of circumstances which have no existence here, the force of the Roman rule will be much impaired, if not destroyed. If, under their law, words of common parlance acquired a technical value by reason of a peculiar institution, then that technical value depends upon circumstances and ceases with them, and the common meaning alone remains. To construe such words, after that, as technical, is, in almost all cases, to pervert the true meaning of the words, unless other parts of the instrument clearly show that they are technically used.
It was part of the Roman law that the heir or devisee accepting the estate of a decedent became at once charged with the payment of all his debts, whether the estate was sufficient to discharge them or not. Hence, and by way of compensation, he was not bound to pay any of the legacies bequeathed by the testator; but this matter was left by the law entirely to his discretion. It was of the essence of a Roman will that the devisee should be universal successor to the property and debts of the decedent. He was in form and substance what we would call executor and sole devisee and legatee, with the additional qualification that he (or they, for many might be joined) was bound personally for the debts, if he accepted the devise.
It is plain how restricted was the right of devise under such a law. When all the testator's bequests could be defeated at the pleasure of the devisee or instituted heir, he had no alternative but to use words of confidence, recommendation, or entreaty, as to any legacies or special devises, and such words would be much more likely to be regarded than the clearest imperative words.
Moreover, there were great and peculiar difficulties in making a valid will at all under the Roman law, owing to the excessive strictness and...
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Reben, In re
...customary law that it consists of those principles and forms which grow out of the customs and habits of the people.' In the matter of Pennock's Estate, 1853, 20 Pa. 268. It is true that "the common law is not in its nature and character an absolutely fixed, inflexible system, like the stat......
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