Shirey v. Postlethwaite

The opinion of the court was delivered, by

Sharswood, J.

— There is no more difficult task than to arrive at the meaning of a testator, when he has used technical words, but evidently not in their proper sense. When we depart from the proper sense we are at sea as to the popular sense, and whether it applies in the particular case. The strict technical sense of dower, is certainly the one-third interest which the widow takes in the estate of her husband as against his alienee or devisee, and it .may, and in common parlance it undoubtedly does, comprehend the same extent of interest which she is entitled to in case of intestacy in the real and personal estate of her husband who has died intestate, or which she may elect to take notwithstanding his will. In neither of these senses did Adam Shirey use the word “ dower” in his will. Did he mean the certain interest which he had devised to his wife, or is it to be confined to the annuity which he had bequeathed for her maintenance? If the first, the estate of the 'widow was during widowhood; if the last, then as it appears to us in fee simple.

It is always best, in a case of doubt, when clear reasons do not exist for a different construction, to adhere to the grammatical collocation of the words. Had there been in the will but one expression of the limitation, there would be great reason for holding that it applied to all the preceding gifts. But the sentence is divided, and it is perfectly clear that the first qualification following the gift of the house and half the lot “ as long as she remains my widow,” does not apply to it, but is confined to the interest of the two thousand dollars. The next sentence there is an independent provision. “ The said dower to remain in the land,” — what dower ? The natural interpretation is the next antecedent — the annual interest for his widow’s maintenance, that being the form which the-dower of a widow according to our Pennsylvania system of laws most usually takes. There is considerable difficulty in giving any other construction to this word. For if we hold that it means the house and half the lot, in what land was it to remain ? Literally it would be absurd to say the land shall remain in the land; but if we consider it as intending that the annuity given to his widow, called by him “ the said dower,” should be secured by a charge on his real estate, effect is given according to the common and well settled rule to every word, and the last qualification “as long as my wife remains my widow,” applies to its last antecedent, the gift of the household furniture. He had already expressly provided that the interest of the two thousand dollars should be paid to his wife only so long as she remained his widow, why should it be reiterated as to this annuity, as it must be held to be, if said dower includes all that went before ?

“ I will and bequeath to my beloved wife Elvinia, the house and half of the lot in which we now live.” Here is a direct substantive gift, which ends there; what follows is independent, under a “together with.” The ninth section of the Act of Assembly of April 8th 1833, Pamph. L. 250, declares that “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appear by a devise over or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.” It is clear that the rule established by the act requires that the contrary intention of the testator must appear in the will, and it would seem to follow that when he has used, such words as render it doubtful whether the limitation or restriction ajoplies to the gift in question, or to some other gift, we ought to give effect to the declaration of the law. If there was no limitation of the gift during widowhood, we do not think that the residuary devise reduced it to a life estate — by the mere force of the general words “real and personal,” — even if the premises had been the only real estate included in it. But at the time the will was made it would seem it was not; for the farm in Antrim township had not been devised to any one specially, although a power of sale of it was given to his executor — a power which appears to have been after-wards exercised.

We are of opinion then that the learned judge below ought to have answered the defendant’s first point in the affirmative, that under the will of Adam Shirey his widow took a fee simple in the property in dispute, but inasmuch as his affirmance of the second point that she did take a life estate precluded a recovery, the verdict and judgment below was for the defendants, as it ought to have been.

Judgment affirmed.