Bingham's Appeal , 1870 Pa. LEXIS 369 ( 1870 )

The opinion of the court was delivered,

by Agnew, J.

— It may be admitted that the intention of the donee of a'power is the true criterion to determine its execution. But this intention must appear in the instrument itself. In Pennsylvania the rule is, that the instrument must refer to the power to be executed, or actually dispose of the subject of it: Wetherill v. Wetherill, 6 Harris 265; Thompson v. Garwood, 3 Whart. 287; Meconkey’s Appeal, 1 Harris 259 ; Keefer v. Schwartz, 11 Wright 508; Commonwealth v. Duffield, 2 Jones 280; Heffernan v. Addams, 7 Watts 116. When the donee of a power refers to it, or when he disposes of the subject of it by such a description as identifies it, the intent to execute it is free from uncertainty. A third mode of ascertaining the intention is, when the instrument of execution cannot have any operation except on the ground that the donee intended to execute his power; as where it is a power to dispose of real estate and he has none of his own. It is manifest the third mode is rather a legal presumption than a manifestation of intention — a positive inference drawn from a negative fact. But positive legal presumptions cannot judicially arise upon equivocal or uncertain conditions of fact. Hence, t.he mere fact that the bequests in a will exceed the testator’s estate cannot draw after it an intention to execute the power. The excess may arise from a mistaken estimate, or from changes in the testator’s property — a mistake common to that numerous class who keep no accounts, or imperfect ones, of their affairs. The evidence of this is the common occurrence of the abatement of legacies. In the present case, Alexander Baring Bingham had a large estate of his own, too large to make the inference clear that he must have intended to execute the power contained in the will of William Bingham. The auditors have reported no clear facts to sustain such a conclusion. It is possible, but not certain, that he intended an execution of the power. It must not be forgotten, when handling such a question, that we are dealing with the property of another, and not with that of the donee of the power. In the donee it is but a trust, and those interested in the estate of William Bingham have a right to know that the will of their testator has been actually executed as he intended by the donee of his power. Hence, they are entitled to certainties, not mere conjectures or possibilities. The New York case of White v. Hicks, 43 Barb. 64, is entitled to no weight here. Justice Sutherland admits that the English authorities, since the Revolution, are strongly against evidence of intention, dehors the instrument, and states the will in regard to personal property is, that you cannot look beyond the face of the will for an intent to execute the power. The question was one of evidence, and its character peculiar; and, at the close of his opinion, he clearly derives his conclusion from local and in part statutory considerations in determining that the evidence of the intrinsic fact was properly received.

The will of Alexander B. Baring refers to his own estate, and none other. When he says, “part of my personal estate may be invested at the time of my decease in bonds, mortgages and other securities in the United States of America,” it is straining the words to say he meant not his own but the estate of William Bingham.

There is no reference whatever in any part of the will to any other estate than his own. The estate of William Bingham he knew belonged to the United States, and was administered under authority there. It was not likely to be removed out of the United States, and had he meant William Bingham’s esta-te, the strong probabilities are he would have referred to it as being there. As a question of interpretation, properly so called, it is impossible to infer an execution of the power from the will of Alexander B. Bingham. This leads us to consider the effect of the statute of 1 Vict. c. 26, § 27, upon his will, Alexander then being domiciled in England. It is doubtless in the power of the Parliament to say that a bequest of a testator’s own estate shall be deemed to extend to the estate of another, over which the testator has a power, unless lie express the contrary intention. But this effect is produced hy operation of law, not by the words of the will. It is manifest that no possible judicial interpretation of the words “my personal estate” can make them mean the estate of another. It is simply a legal effect or operation of law by statutory construction which can do so. But where the situs both of the will containing the power, and of the property subject to it, lies beyond the domain of Parliament, it is evident that the statutory construction of the instrument of execution can have no operation upon it. That would be to subject Pennsylvania rights to English dominion. Whether a power contained in a Pennsylvania will over Pennsylvania property has been duly executed, is evidently a question of Pennsylvania law, and not that of a foreign country having no jurisdiction. The proof of this is the possession we have, and the right we are now exercising in determining the very question before us. The fallacy of calling it interpretation, if we should give effect to the statute of Victoria, is seen in this, that judicially we can take no cognisance of the statute. It must come to us in the form of proof of a foreign law, and the moment it comes in that form we perceive that we are not simply interpreting the will, but we are constructing for it a new meaning by virtue of a foreign statute.

The rule that the same interpretation of a will should be given in a foreign country which the will has in the place of domicile, is misapplied to this case. That'is precisely the rule we are now applying, the will, the property and the domicile of William Bingham being within Pennsylvania, the law of this state must govern the interpretation both of the power and the execution of it. If this were a case of the execution of a power created by a British will, the statute of Victoria would govern the execution of the power, and we should have to say that Alexander B. Bingham’s will was a good execution of the power. The exercise of Alexander B. Bingham’s power of dominion over the property is necessarily regulated by the law which governs the subject of his dominion. It is not the estate of Alexander B. Bingham, but that of William Bingham, which is the subject of the exercise of the power, and its situs being here, it was therefore controlled by our law. The case was well decided by the learned auditors and the court below, and is therefore affirmed.