Judges: Agnew, Read, Sharswood, Thompson, Williams
Filed Date: 11/16/1871
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered, November 16th 1871, by
The view which we take of the true construction of the will of Samuel Paisley disposes of all the questions which have been mooted on this appeal. He gives to his widow, the present appellant, the rents and profits of all his property during her natural life, under the direction of his executors. The object of this devise to her is expressed to be “for her support and the support and education of his children.” We must give the words of the will a reasonable construction. He certainly never could have intended that in the support of herself and the support and education of his children she should be under the direction of his executors. They were not to have rule in the household — to direct how or where she should live — how the children should be fed and clothed — to what schools they should be sent. Undoubtedly he meant that as long as his family continued to live together she should preside as the mistress, and have the control of it herself. He had confidence in her that she would do her duty as a mother, and it does not appear that his confidence was misplaced. In the management of the property — the renting and other disposition of it — he considered that her sex and her household duties would, in a measure at least, incapacitate her, and he wills, therefore, that as to all that, she shall be under the direction of his executors. If we read the will as if these words, “ for her support and for the support and education of my children,” were in a parenthesis, this construction becomes very evident. These words created no trust, then, either in the widow or the executors for the children, which could give the Orphans’ Court jurisdiction to call them to account, or to make a decree in favor of the children for the future administration of the estate. In that respect it was like Willard’s Appeal, 15 P. F. Smith 265. The case of Kinsley v. Lardner, 15 S. & R. 192, does not sustain the contention of the appellees. No such point was made, and the only matter decided was, that the wife took an estate for life, with a vested remainder to the children. The case of Longmore v. Elsum, 2 Younge & Coll. 363, 21 Ch. Eng. Rep. 362, also cited and relied on, even if we should feel disposed to follow it, differs very materially from the present. There was no direct devise as here to the wife, but to the executors in trust to permit her to receive the rents and profits for her own use and benefit, and for the maintenance and education of the children, and subject to such trusts, in trust after the decease or marriage of the widow, for his said children in equal shares. All the provisions of the will were spoken of as trusts. If, however, in the will before us, this was a trust for the children, when did it commence ? On the child
Decree reversed at the costs of the appellees.