Pryor v. Dunkle , 2 Wash. C. C. 416 ( 1809 )

WASHINGTON, Circuit Justice

(PETERS,. District Judge, absent). AVere a plain man, such as the writer of this will most certainly was, called upon to give a construction of. it, he would probably be astonished to hear that gentlemen learned in the law» had been perplexed by' it; and he might seek in vain for those difficulties which great talents .could alone discover. He would never think Of searching after intentions, beyond the' plain meaning of the words used by the testator, and until he discovered some incongruity 'in the bequests, or some ambiguity in the expressions, he would adhere to the words," and leave it for more skiiful interpreters to' ex-' plore the field of conjecture. Inquiring, as would be natural, what does the testátor give? to whom does he give? and for what estate? he would find no difficulty in saying, that he gives the whole annual income of his real estate in the city and county of Philadelphia and district of Southwark — that he; gives that estate to his wife, for the use of herself and her son Matthew — and that he gives it, for and during her widowhood, and: no longer. But finding that at' the close of the will, another person is introduced into . the participation of this bequest, to a certain amount, I think he would find no difficulty in removing this clause to that to which it necessarily belongs; and would then say, that the estate is given to the wife during her widowhood, to dispose of as follows, viz. thirty pounds per annum to Tacy, and the residue of the income to be equally divided between herself and her son Matthew. This construction arises necessarily from the words of the will; and I adopt it as a safe one, because I am satisfied that it cannot disappoint the intention of the testator. The devise to the son and grand-daughter is of parts of an estate given to the wife during her widowhood, and cannot subsist one moment after that estate is defeated by the happening of the contingency which was to terminate it. The devise, in fact, is to all three, in the proportions mentioned, to continue during the widowhood of one of them; and the constituting that one a trustee for the others, cannot vary the case. As to the residue of the first clause of the will, it is plain, Thomas Shinn is not substituted as the trustee of the estate before devised, but solely as the guardian of the son. If he was intended to be a trustee, who would be the cestui que trust? It was contended for the defendant, that the limitation of the devise to the wife was confined to her legal estate, and does not affect the beneficial interest which she took under the will. But it is most obvious, that the testator intended to deprive her of the bequest altogether, upon her second' marriage; and he could not well have used more intelligible language, to express such an intention. His object was not only, upon that event, to deprive her- of this provision, but to transfer to Mr. Shinn the sole care and direction of his son. But he uses no words which, by any intendment, can be construed to pass the estate to him. If Shinn was constituted a trustee, and the widow forfeited by her marriage her interest in the estate, then an intestacy took place as to a moiety of the income, deducting the thirty pounds given to Tacy; and yet, that the testator did not mean to die intestate, is urged as an argument against the construction contended for by the plaintiff. I presume, however, that the testator thought nothing and knew nothing of the legal consequences of the disposition he had made, in this respect; and the subject of intestacy never occurred to him.

As to the payment to Tacy Pryor of her annuity, becoming due, as was supposed, after her right to it had ceased by the second marriage of Sarah Pryor, this affords no legal objection to her recovery in this action; and upon the whole, I am of opinion that judgment should be given in favour of the lessor of the plaintiff, for one undivided moiety of the lands in the declaration mentioned.