Rogers' Estate

Opinion by

Mr. Justice Pottee,

This is an appeal from the decree of the Orphans’ Court of Montgomery County, dismissing exceptions to the adjudication in the estate of Edward L. Rogers, deceased. In his will the testator gave legacies of $10,000 to each of his three children and provided as follows: “And as to all the rest, residue and remainder of my Estate, real, personal or mixed, of whatever nature or kind, or wheresoever situate at the time of my decease, I do hereby give, devise and bequeath to my Beloved Wife, Harriet M. Rogers, for and during her natural life, with full power to sell or dispose of any of my real estate, securities of any and all kinds, in such a manner as she may desire, with the request however that care be taken in the investment or reinvestment of any money that may not be actually required for living expenses, or other necessities, with the wish that she may at any and all times be liberal in regard to her own comforts and not feel that it is necessary to be unduly economical, especially so if my estate so warrants it.” There was no gift over of the estate.

Upon the audit of the executor’s account, the widow, who had elected to take under the will, claimed that she was entitled to the residuary estate absolutely. The auditing judge, however, held that she was given only a life estate, with power of sale and the right to consume as much as may be actually required for living expenses and necessities. Exceptions filed by the widow were dismissed and the adjudication was confirmed. The widow has appealed. The general rule is that a gift for life without a gift over passes the whole estate. This is not a rule of law, but a rule of construction in aid of discovery of the testator’s intention. Tyson’s Estate, 191 Pa. 218. In that case, however, there was an absolute devise over, and the residue after the life estate passed under the will. In Brownfield’s Estate, 8 Watts 465, the testator gave his wife “one third of my personal estate, during her life, after my just debts paid,” without any disposition over. Mr. Justice Kennedy said (p. 469): “The widow was entitled to receive it, to dispose of as she pleased, there being no limitation over of it after her death.” In Diehl’s Appeal, 86 Pa. 120, a testator gave to his wife a tract of land during her life time, “together with all my bonds and notes, to have and to hold the same, also all my personal estate, whatsoever will be left after my decease, to have and to hold the same during her natural life time,” without making any disposition over. It was held that the bonds and notes became the absolute property of the testator’s widow. In Shower’s Estate, 211 Pa. 297, our Brother Mesteezat said (p. 303): “We concede the rule invoked by the appellants that the gift of the income of an estate'with no limitation over of the principal is an absolute gift of the property or fund itself.” In Merkel’s Appeal, 109 Pa. 235, a testator gave to his wife, “my remaining personal property, it may be money or whatsoever kind it will, to her full ownership as long as she doth live.” He also provided: “I recommend that my hereinafter named executor shall see after that her . money does not become lost.” In disposing of this case Mr. Justice Paxson said: “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____... The recommendation to his executor to see that his widow’s money ‘does not become lost’ are precatory words, and since Pennock’s Estate, 2Ó Pa. 268, have never been held sufficient to convert a devise or bequest into a trust.” In the present case the request thát care be taken in the investment of the money is merely precatory, and the provision giving to the wife full power to sell or dispose of the estate, is the controlling language of the residuary clause of the will. In Freeman’s Estate, 220 Pa. 343, there was a provision which relieved the wife as life tenant from giving security, and it was held that if it had been intended to give an absolute estate, these words would be meaningless. Therefore, they were regarded as sufficient to take the case out of the general rule. In the present case, in a former clause of the will, after speaking of bequests which he had made to his two daughters, the testator makes further reference to “any other interest that may eventually come to them from my estate.” We do not, however, regard these words as necessarily having the effect of limiting the wife to an estate for life. They may apply to real estate of which testator died seized, which would descend to the daughters if not consumed by the wife. These words might also apply to any portion of the personal estate which the daughters might eventually receive from their mother. The testator evidently contemplated the possibility that the widow would not consume the entire- principal of the estate, in which event she would naturally bequeath part of it to her children, or in the event of her dying intestate they would inherit from her. There is also a presumption of the first taker having a fee, in spite of subsequent words which appear to be repugnant. See language of Mr. Chief Justice Mitchell, in Allen v. Hirlinger, 219 Pa. 56, at page 58. At any rate, we are not satisfied that the language used indicates a clear intention on the part of the testator to restrict the gift to the widow to a life estate only, nor do we regard it as sufficient to overcome the established rules of construction that would give to her the personal property, absolutely. In many of . our cases language much Stronger has been held not to have the effect of cutting down the wife’s interest to a life estate. Thus in Follweiler’s Appeal, 102 Pa. 581, testator gave and bequeathed “all the rest, residue and remainder of my goods, chattels, debts, ready money, effects and other of my estate whatsoever and wheresoever, both real and personal, every part and parcel thereof unto my wife Mary, to keep and enjoy during her lifetime, and after her death what shall be left shall be divided equally, my heirs and her heirs, share and share alike.” It was held that the widow would take any personal property absolutely, but took a life estate only in the realty. Mr. Justice Trunkey said (p. 583): “If there were any'personalty, appellant (widow) would take it absolutely. But the realty is not subject to the same rule.” The principle of this decision was recognized and followed in Cox v. Sims, 125 Pa. 522, and the same principle was again cited and approved in Taylor v. Bell, 158 Pa. 651, where Mr. Justice Green said (p. 655): “In the present case the widow has the right to use the residuary estate as she may deem best for her own advantage. This would entitle her to an absolute estate in the personalty, because it includes the power of disposition.” In that case, however, as to the real estate, there was no power of sale. While in the case now before us the wife was given power to dispose of the real estate, if necessary. In Boyle v. Boyle, 152 Pa. 108, it appeared, as set forth in the syllabus, that a will provided as follows: “as to my worldly goods, after my just debts are paid, I give and bequeath to my beloved wife, all my property, real and personal for her support during her natural life time; any remainder at her decease to be disposed of by her as she may think just and right among my children.” It was held that the words of the will imported an absolute gift, and gave a fee with all its incidents. In Hardaker’s Estate, 204 Pa. 181, the wife was given the estate during her natural life with power of disposition by will. It was held that she took an absolute and not merely a life estate in all the property possessed by the husband at the time of his death.

In the case now under consideration the residue of the estate was given to the wife “for and during her natural life, with full power to sell or dispose of any of my real estate, securities of any and all kinds in such a manner as she may desire.” This was followed by the precatory words as to care in investment of money not actually required for living expenses or other necessities. We cannot under the authorities above cited regard these latter words, nor the words in the former clause of the will, referring to any interest that may eventually come to his daughters from his estate as expressing a clear intent upon the part of the testator to limit the interest of the wife to a life estate. We think an absolute estate in the personalty passed to the wife.

The first, third, fourth, fifth, seventh,' eighth, ninth and tenth assignments of error are sustained. The decree of the Orphans’ Court is reversed, and it is ordered that the record be remitted to the court below, that distribution may be made in accordance with this opinion.