Watts's Estate ( 1902 )

Opinion by

Me. Justice Fell,

The testatrix by her will provided for the education of her adopted daughter, and gave her a legacy on condition that she should prove herself worthy of it. The will ended with this clause to which the controversy relates : “ I also desire the remainder of my estate to be disposed of in accordance with the judgment and advice of my executor William Still.” The auditor found that there was an intestacy as to the remainder, and awarded it to a brother of the testatrix. This finding was confirmed by the orphans’ court.

It was not the intention by this clause to create a trust, or to give the executor a power to sell merely, and we see nothing in it but an unlimited and purely arbitrary power of disposition. Without writing in or taking out a word, full effect is given to the clause by regarding it as the substitution of the judgment of the executor for that of the testatrix in the disposal of the estate. The testatrix had an undoubted right to give her estate to such persons as her executor might select. She could have given it to him for life and at his death to such persons as he might appoint. The power is no less valid because not preceded by an estate to him. If she had said, “ I give my estate to such persons as my executor shall appoint,” or “I give to my executor full power to dispose of my estate in accordance with his discretion,” there could be no doubt that a general power of appointment was conferred on the executor. This is in effect what she said in directing the remainder “ to be disposed of in accordance with the judgment and advice of my executor.” Too close adherence is not to be had to the precise literal meaning of the words of a will, and a construction is to be given which will make it effective rather than destroy it. In Beck’s Appeal, 116 Pa. 547, the testator was given “ full and unlimited power and authority to appropriate and dispose of the residue . . . . to such objects, persons, or institutions as in his discretion shall be best and proper.” It was held that a valid disposition was made of the residue, and that the executor had power to dispose of it at his discretion. This case cannot be distinguished from that.

The decree of the court confirming the auditor’s report is reversed, and it is directed that- distribution be made in accordance with this opinion.