Hewson & Emlen's Appeal , 1883 Pa. LEXIS 12 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, April 16th 1883.

This will was made the day before the decease of the testatrix. Slie was a widow with three young children. The manner of expression in bequeathing the several annuities and legacies throw little, if any, light upon the intention of the testatrix in the clause: “ I wish my aunt, Ellen M. Emlen, to take charge of my children, and to receive annually from my estate, for her services, $500.”

Although the will is not in technical form or language, the purpose of it is obvious, and the meaning of the several items, except the first, is too clear for different interpretations. Perhaps, to persons unfamiliar with technical phrase, the meaning of the first clause in the will, providing for the first and chief objects in the mind of the testatrix, would be almost equally clear. They would understand that she wished Mrs. Emlen to take charge of her. children.during their, minority, and receive each year $500 for her services; and that when she ceased to serve, her pay would cease. There might be some difference of opinion respecting the ..character of the services, but whatever the services, the compensation therefor is fixed. It’is commonly understood that parents have power to place their children under the care of another only while they are infants, and hence the duration of the charge would not be inferred to extend beyond their minority. We are not convinced that anything in the will, or any rule of construction, requires departure from the usual sense of the words in order to ascertain the intention.

The statute authorizes a father to devise the custody of his unmarried child during his or her minority, or for any shorter period. Had the father of these children appointed a testamentary guardian of their persons, and provided for his compensation, in similar language as used in the first clause of this will, his intention would not have been doubtful. In such case the guardian would be entitled to the stipulated price for each year of service, and the service would terminate when the children reached majority. Acceptance and service would not entitle him to receive the annual price after the relation ceased, or vest in him an annuity for life. The testatrix wished Mrs. Emlen to take charge of the children, and receive a certain sum annually for her services. This is akin to an appointment of a testamentary guardian of the person, and should be similarly construed. The mother had confidence that her aunt would comply with her wish, though not guardian of the children, and not having legal power over them, and for her service named the compensation. In the nature of the service its value rested in the fidelity of Mrs. Emlen. She faithfully performed the trust, and that she was entitled to the annual bequest therefor until full age of the youngest child has not been denied. But she is no more entitled to the payment of said sum per annum during her life than if she had been testamentary guardian serving on the same terms.

This is not like the case of a legacy to an executor, where any acts which show an intention to execute the trust give at once a vested right to the entire legacy. Nor is it a bequest of an entire sum for the performance of a trust. But it is a direction for payment of a certain sum annually for services in the charge of children. By doing something in the charge of the children, Mrs. Emlen became entitled to the annual payment. Acceptance and performance were necessary on her part, and the right to receive the payment ended with the termination of her relation to the children.

Decree affirmed and appeal dismissed at the costs of the appellants.

Sterrett, J., dissented.