Estate of Phillips , 133 Pa. 426 ( 1890 )

Opinion,

Me. Justice Clark :

The facts of this case are substantially as follows:

John Phillips, who died on the 6th day of March, 1887, by five separate bequests contained in his last will and testament, bearing date the 27th day of August, 1885, and admitted to probate on the 28th day of March, 1887, gave to the Pennsylvania Company for Insurance on Lives & Granting Annuities, $50,000 in trust for his widow, Mary Ann Phillips; $28,000 in trust for his daughter, Martha Jane Boner; $28,000 in trust for his daughter, Catharine Ann Williams; $35,000 in trust for his son, Hugh Phillips; and $35,000 in trust for his daughter, Mary Louisa Phillips, as follows: “ In trust, to invest the same in good and lawful securities, to collect and receive the annual income of profit arising therefrom, and to pay the said annual income or profit, less all proper costs and charges, in half-yearly instalments, to ” the person named, free and clear from all liability for debts, etc.; “ and, as to each and all of the trusts aforesaid, I order and direct that the said trustee may in lieu of money accept from my executors, hereinafter named, in liquidation of the said bequests, and each or any of them, such good securities belonging to my estate as shall amount in value to the sum bequeathed, .... and that the said bequests shall be paid at the convenience of my said executors, and without interest.” He made four bequests to individuals and charities, of $1,000 each; gave the use of his house a,nd household goods to his wife for her life, which, with the bequest in trust, was in full of all claims by her on his estate; gave the use of the houses occupied by his daughters to them, and devised the rest and residue of his estate, in equal shares, to his three sons, Edward John Phillips, Thomas H. Phillips, and A. Lincoln Phillips, and their heirs, forever, and appointed them the executors of his will. On April 5, 1887, the widow notified the execdtors of her refusal to accept the provision made for her in the will of her husband, and of her election to take under the intestate laws of the commonwealth. On April 16, 1887, the executors filed an inventory and appraisement of the personal estate, amounting to $247,215.20. The real estate of the testator was of the estimated value of $100,000 to $120,000.

The appellants’ contention is that they are entitled to have interest upon the bequests made for their benefit, from the date of the testator’s decease until the date of payment thereof to the trustee. Whether this is so or not, depends upon the intention of the testator, to be gathered from the body of the will under the ordinary rules of construction applicable in such cases. The fifty-first section of the act of February 24, 1834, provides that “ legacies, if no time be limited for the payment thereof, shall in all cases be deemed to be due and payable at the expiration of one year from the death of the testator.” This section was declaratory merely of the law as it had previously existed: Wood v. Penoyre, 13 Ves. 326; Huston’s App., 9 W. 477; it supplies a testamentary intent, where none is expressed in the will: Koon’s App., 113 Pa. 621.

To this rule, however, as remarked by our Brother Sterrett in Townsend’s App., 106 Pa. 273, “there are some well-recognized exceptions, such as a legacy by a parent to his child, or by one in loco parentis, by way of maintenance, where the possession of the principal is deferred; a legacy to a widow in lieu of dower, where no other means for her support is provided, and also where interest in the nature of an annuity is given, if by implication from the terms of the instrument, the legacy is given for support,” etc. One of the beneficiaries under the clauses of this will which give rise to this controversy is the widow, and another the unmarried daughter of the testator, neither of whom has any other independent provision for her support, and for whom no other provision is made in the will; and it is argued that, under the rule stated in Townsend’s Appeal, supra, we must suppose that the testator’s intention as to them, at least, was that they should have interest from the time of his decease by way of support, and that, the testator’s intention as to them having been ascertained, the same purpose will be presumed and pursued as to the others, whose legacies are given in precisely the same words.

It is only when the testator’s intention has not been expressed in the will that the artificial rules already referred to are resorted to, to supply that intention. In this instance, however, the testator has in very plain words expressed his intention that these bequests were to be paid to the trustee, at the convenience of his executors, without interest, and that the income thereof was payable by the trustee to the beneficiaries, and not by the executors. The executors, of course, had no absolute, arbitrary discretion in the matter; they were bound to pay whenever, according to their judgment, exercised in a reasonable manner, it was safe and suitable for them to do so, and when payment could not reasonably be supposed to involve them in any danger or difficulty. To this extent, he confided in his executors and invested them with the exercise of a discretion, for their own protection as well as for the interest of those beneficially interested in the estate. After the testator’s death, the widow elected to reject the provisions made for her in the will, and to take under the intestate law. It seems, also, that the appellants, or some of them, for a considerable time after the granting of the letters, were making an effort to induce the Pennsylvania Company for Insurance on Lives, etc., the trustee, to relinquish the trust, and desired the executors to pay the legacies over to them directly, and that these negotiations, and the dissatisfaction of the appellants witli the trustee, “ were the chief causes of the delay in the liquidation of the bequests to the trust company.”

In fixing a convenient time for payment of these bequests, the executors do not appear to have exercised their discretion in any arbitrary way, much less to have acted in any bad faith; the delay being mainly attributable, as the auditor finds, to the acts of the appellants themselves. In view of all the circumstances, therefore, we are of the opinion that the auditor and the court were right in refusing to allow the interest.

The decree of the Orphans’ Court is affirmed, and the appeal dismissed, at the cost of the appellants.