Second Reformed Presbyterian Church v. Disbrow

• Decision Date: 02 April 1866
• Citation: 52 Pa. 219
• Court: Pennsylvania Supreme Court
• Parties: The Second Reformed Presbyterian Church <I>versus</I> Disbrow <I>et ux.</I>

Page 219

52 Pa. 219

The Second Reformed Presbyterian Church versus Disbrow et ux.

Supreme Court of Pennsylvania.

April 2, 1866.

ERROR to the District Court of Philadelphia.

J. W. Coulston and Z. P. Dobson, for plaintiffs in error.— There is in this will a devise for life to the wife, with words importing a power of disposal, with precatory words as to what remained, and a residuary gift to her of other property. In Pennock's Estate, 8 Harris 268, was the word "absolutely," marking entire ownership: Oswald v. Kopp, 2 Casey 516. The fact that in another clause the testator has by apt words devised an absolute estate, is proof that he designed to create a trust as to the other: Brown v. Brown, 12 Md. 87.

"To dispose of the same as may seem best unto her," is giving her a power with the same means of exercising it that the testator had. A will must be construed as a whole, so that nothing be nugatory: Mirril v. Nichols, 2 Bulstr. 178; Earp's Will, 1 Pars. 457; 17 Alab. 306; 17 Id. 307. When a former clause is particular, a subsequent clause shall not enlarge it: Roberts v. Kiffin, Barn. Chan. R. 261; Chan. R. 145; Style 276, 391; 2 And. 17. In doubtful cases the construction is according to the common law: Wild's Case, 6 Coke 16; Cro. Eliz. 743; Daniel v. Ubley, Latch 40; 2 Bulstr. 120; Carter 5. Express words are to be controlled only by necessary implication: Jones v. Colbeck, 8 Ves. 42; Blakiston v. Hazlewood, 10 C. B. 544; Greenwood v. Sutcliffe, 14 Id. 226; 1 E. & B. 727; Vaughan 262; Bender v. Dietrick, 7 W. & S. 284; Bowes v. Blackett, Cowper 235; Busby v. Busby, 1 Dal. 228; Viner's Abr., Devise, 187, pl. 57; Idle v. Cook, 1 P. Wms. 70; Bamfield v. Popham, Id. 54; 8 Petersdorf Abr. 226(1), 293(1); Redfield on Wills 434. The rule that a devise with power to give a fee passes a fee is to be understood with the qualification that the donee has not an express estate divided from the power: 2 Prest. on Est. 82, *80, 81, 83; Tomlinson v. Dighton, 1 P. Wms. 149; s. c. in 1 Salk. 239; 10 Mod. 31, 71, and Comyn R. 194; 1 Harr. (N. J.) 28; Brooks' Abr., Devise, pl. 39; Culbertson v. Duly, 7 W. & S. 195; 4 Kent's Com. 319, 526; Liefe v. Saltingstone, 1 Mod. 189; 1 Chance on Powers 45 (121) et seq.; 2 Prest. on Est. 82. A direction after a life interest that the property shall go in a particular way in words importing a power, as to a person to be appointed would be a power: Maxwell's Will, 27 Beav. 250; 3 Lev. 71; 4 Id. 41; Goodtitle v. Otway, 2 Wils. 6; Jenner's Case, 1 Leo. 238; Herbert v. Lewis, 4 N. & M. 696; Reid v. Shergold, 10 Ves. 370; 1 Sugd. on Powers 123, 134, 135; 1 Chance on Powers 47 (125); 2 Jarm. on Wills 132, in note; Thorley v. Booth, 10 East 438; Fisher v. Herbell, 7 W. & S. 64; Jackson v. Robbins, 16 Johnson 537; Haralson v. Redd, 15 Geo. 148; Dean v. Nunnally, 36 Miss. 358; Rubey v. Barnett, 12 Id. 3; 9 Dane's Abr. 398; 2 Jarm. on Wills 125, note; Cook v. Walker, 15 Geo. 459; Armstrong v. Armstrong, N. J. Ct. of App., 3 Am. Law Journ. 49; Espinasse v. Luffingham, 9 Irish Eq. 129; Wells v. Doane, 3 Gray (Mass.) 204; Morris v. Phaler, 1 Watts 390; Flintham's Appeal, 11 S. & R. 18; Namcock v. Horton, 7 Ves. 391; Thomas v. Thomas, 1 Rawle 120; Bradley v. Westcott, 13 Ves. 453; 1 Sugd. on Powers 125. In Bull v. Vardy, 1 Ves. Jr. 270, and other cases, there was no life estate coupled with the power, or certain or ascertainable, subject to be appointed to a certain object. Here, from the juxtaposition of the estate for life and the power, an apparent contradiction would arise, if the power imported a fee, which would render the devise for life nugatory, and the will contradictory. The disposal is particular, designating the persons to whom the property should go: 2 Prest. on Estates 81, 82; 1 Chance on Powers 133, 139; Daniel v. Ubley, Latch 9, 39, 134; Noy 80; 1 W. Jones 137; Liefe v. Saltingstone, 2 Leo. 104; 1 Mod. Carter 232; 2 Madd. 453; Reid v. Reid, 25 Beav. 469. The vesting of such power in her as executrix conferred no interest: Countess of Bridgewater's Case, 6 Mod. 111. The power of disposal over the land was not entire. If sold, she was to take for life the interest of the proceeds, less expenses and debts. An express power to dispose of part, is inconsistent with a gift of the whole: Bradley v. Westcott, 13 Ves. 453; 2 Jarm. on Wills 321; Cooper v. Williams, Prec. in Chan. 71; 2 Eq. Abr. pl. 2; 1 Jarm. on Wills 321, 322; Redfield on Wills 680, 681; 8 Vin. Abr. 72, pl. 25; Id. 289, pl. 25; Hands v. Hands, 1 T. R. 437, in note; Duhamel v. Ardovin, 2 Ves. Sen. 62; Surman v. Surman, 5 Madd. 123; Musselman's Estate, 3 Wright 469; Anderegg v. Ross, 13 Ind. 443; Horwood v. West, 1 Sim. & St. 389; Scott v. Josselyn, 26 Beav. 174; Redfield on Wills 280; 2 Spence Eq. Jur. 62. Indefiniteness is not always considered sufficient to invalidate the gift: 1 Jarm. on Wills 322; Pushman v. Filleter, 3 Ves. 7. The words "it is my wish and desire," operate as an express devise, and the objects having a perpetual continuance, as a church, &c., a fee will pass: Prest. on Est. 71, 89; Redfield on Wills 174; Wilson v. Corbin, 1 Pars. 347; Com. Dig. N. N. 1, Devise; 2 Eq. Abr. 291, pl. 10; Zimmerman v. Anders, 6 W. & S. 218.

The church, therefore, took a vested remainder in the land, as the power was not exercised. If it had been, they would have had a vested legacy in the proceeds of sale after deducting debts and expenses. The courts will construe a bequest of this description as a gift, by implication, to the objects of the power: Hill on Trustees 68, 69, 70. In Pennsylvania, a devise to a charity should be regarded with favour, without respect to forms: Beaver v. Filson, 8 Barr 327; Domestic and Foreign Missionary Society's Appeal, 6 Casey 25; McGirr v. Aaron, 1 Penna. Rep. 49; Morrison v. Beirer, 2 W. & S. 87; Newell's Appeal, 12 Harris 197; Evang. Association Appeal, 11 Casey 316. A devisee whose interest is free from doubt, is preferred to the heir: 1 Saund. 185, n. 5. The presumption in favour of the first taker should be more easily rebutted. The effect of the residuary disposition is not to give the fee in the land already specifically devised: Earp's Will, 1 Pars. Rep. 459; Hansell v. Hubbell, 12 Harris 245; Nethercot v. Bartle, 5 B. & Ald. 492; Van Kleeck v. The Church, 6 Paige Ch. R. 600. The subject of the trust was certain, as the definiteness required in a gift and trust is the same, and such a gift would be valid: 2 Spence Eq. Jur. 62; Redfield on Wills 680, §§ 22; 16 Merlin Rep. de Jur. 600-670; 70 Sect. 3 D. de legatis, 2°, 54-58; Sec. 8 D. ad Trebellianum.

The law regards little but the intention. By the principle in Pennock's Estate, the intention of the testator is generally defeated. Precatory words primâ facie exclude discretion: Hawkins on Wills 160. "May," used by the sovereign, is usually equivalent to must: Dwarris on Stat. 717. A testator has sovereign power over his property. In Coates' Appeal, 2 Barr 129; McKonkey's Appeal, 1 Harris 253; Jackson v. Jackson, 2 Barr 212, the same principle as to the mandatory effect of precatory words was admitted: Walker v. McQuigg, 6 Watts 87; Connell v. Lovett, 11 Casey 103; Cooper's Justinian 535. Sister states, drawing their law from the same source with us, have the old English rule; this is evidence that this is the law with us: Callender v. Keystone Insurance Co., 11 Harris 473; Sugden on Prop. 262; Hill on Trustees 68-72; Vandyck v. Van Buren, 1 Caines 84; Hart v. Hart, 2 Dess. 63; Brunson v. Hunter, 2 Hill Ch. R. 2; Sydnor v. Sydnor, 2 Munf. 263; Harrison v. Harrison, 2 Gratt. 1; Erickson v. Willard, 1 N. Hamp. 217; Lucas v. Lockhart, 10 Sm. & M. 466; Collins v. Carlisle, 7 B. Monr. 14; Tolson v. Tolson, 10 Gill & Johns. 159; 8 Gill 376; Green v. Collins, 6 Iredell 139; 1 Rich. Ch. 324; 7 Jones 463; 2 Stock. 304; McKee v. Means, 34 Alab. 349; 35 Verm. R. 179; Ingram v. Fraley, 29 Georgia 553; Bull v. Bull, 8 Conn. 47. Gilbert v. Chapin, 19 Id. 342, contra, was decided by a divided court. Harper v. Phelps, 21 Id. 257, was decided as not within the English rule. Ellis v. Ellis, 15 Alab. 296, is not consistent with 34 Id. 349. In Thompson v. McKissick, 3 Humph., there was no life estate. Gally v. Cregoe, 24 Beav. 185; Benson v. Kinnear, 2 Giff. 195; 6 Jur. N. S. 882; Malin v. Keighley, 2 Ves. Jr. 333; Scott v. Key, 11 Jur. N. S. 819; Crockett v. Crockett, 1 Harr. N. J. 451; Shovelton v. Shovelton, 32 Beav 143. Pennock's Estate has been recognised as a precedent merely, in Walker v. Hall, 10 Casey 484; Kinter v. Jenks, 7 Wright 445; Jauretche v. Proctor, 12 Wright 466 — not upon its principles. None of these cases are analogous to this.

G. L. Crawford and B. H. Brewster, for defendants in error.— The testator gives his wife a fee simple, by giving her a power of disposal and his whole rights and powers: Morrison v. Semple, 6 Binn. 97; Morris v. Phaler, 1 Watts 390; Culbertson v. Duly, 7 W. & S. 195; Brown's Estate, 2 Wright 293; Turbett v. Turbett, 3 Yeates 187; Wills Act of 1833; Johnson v. Morton, 10 Barr 245; Weidman v. Maish, 4 Harris 511.

No rule of property has been more thoroughly considered and affirmed than that words merely precatory do not primâ facie import a trust: Pennock's Estate, 8 Harris 268; Walker v. Hall, 10 Casey 484; Kinter v. Jenks, 7 Wright 445; Beck's Appeal, 10 Wright 527; Jauretche v. Proctor, 12 Id. 466.

Even in England, where the testator does not take away the donee's discretion, the expression of his wish and desire does not raise a trust: Hawkins on Wills 160, 163; 2 Ves. Jr. 335; 1 Sim. 542; 10 Price 306; 9 Sim. 319; 10 Id. 1; 14 Id. 379; 3 Mac. & G. 554; 2 De G. & Sm. 356; 5 Mad. 434; 3 Beav. 154, 72, 6; 2 Y. & C. N. S. 582, 90.

Where there is a discretion to withdraw any part of the subject of the devise from the object, or apply it to the donee's use, or where there is uncertainty in the subject with merely precatory words, no trust is created: 3 Beav. 173, 4; 2 Bro. C. C. 585; 3 Ves. Jr. 7; 5...