National Live Stock Bank of Chicago v. Hartman , 8 Pa. Super. 170 ( 1898 )

Opinion by

Porter, J.,

It is sometimes difficult in the interpretation of wills to obey the canon of construction that the court must not determine the probable intention of the testator but what that intention is as expressed by the words of his will. “ The question in expounding a will is not what the testator meant but what is the meaning of his words: ” Hancock’s Appeal, 112 Pa. 532, 541. In this case it may be that “ his idea was that after his wife’s death his • children would take the property,” as held by the court below, but is this what he says in his will? 'We think not. The will provides: “ I will, give, and bequeath unto my beloved wife, Mariann Hartman, all my property, real, personal and mixed, of whatever nature and wherever the same may be at the time of my death, to enjoy the same during her natural life.” Then follows a restriction that the real estate shall only be sold with consent of the coexecutor. Finally the testator directs that the wife and her coexecutor “ shall collect promptly all debts. owing to me, and invest the same in safe loans at interest, which said interest shall be used for the maintenance of my wife and children.” The gift in the first clause, to the wife, of the personal estate “ to enjoy the same during her natural life ” in the absence of a trust and of a remainder over, undoubtedly gave her an estate absolute to all thereof except perhaps to such part of it as consisted of debts due the testator and which are not involved in this controversy.

In Appeal of Merkel, 109 Pa. 235, the clause under consideration was: “ I give and bequeath to my beloved wife, Susanna, my remaining personal property, it may be money or whatever kind it will, to her full ownership, so long as she doth live. Further, I recommend that my hereinafter named executor shall see that her money does not become lost.” On this clause it is said by Mr. Justice Paxsost: “The language of the will above quoted is ample to vest the personal estate of the testator absolutely in his widow. It is a gift for life, without any limitation over, and without the intervention of a trustee. There is a line of decisions in this state which hold that such a bequest is absolute: Smith’s Appeal, 23 Pa. 9; Brownfield’s Estate, 8 Watts, 465; Diehl’s Estate, 36 Pa. 120; Silknitter’s Appeal, 45 Pa. 365; Grove’s Appeal, 58 Pa. 429. Authorities might be multiplied if it were necessary.” See also Cox v. Sims, 125 Pa. 525; Boyle v. Boyle, 152 Pa. 108; Markley’s Estate, 132 Pa. 352; Drennan’s Appeal, 118 Pa. 176.

The other clauses of the paragraph do not affect the construction placed upon the one creating the absolute ownership of the personalty. It is true that the real estate is included in the clause as well as the personalty. But there can be no presumption from this that the title to the personal property should follow the title to the real estate, even if it should be found that the title to the real estate was restricted to an estate for life. There is in respect to the real estate a restriction as to the power of alienation which nowhere is made applicable to the personal estate.

The last clause of the paragraph affects only debts owing to the testator. The personal property here in dispute is not affected by this clause. The attachment is levied upon certificates of bank stock owned by the testator and which still remain in his name and which formed the corpus of his personal estate.

Under the facts of this case, and keeping our eyes fixed on the words of the will to determine their meaning, we are constrained to hold that an absolute interest passed to the widow and that the rule should have been made absolute under the stipulation filed in the court below.

Judgment reversed.

Beaver, J., dissents.