Estate of Tyson

Opinion by

Mb. Justice Mitchell,

This is in form a petition for a citation to account, but in substance it is a bill in equity by the surviving executor of Charles Tyson against the executors of Mary Tyson for the conveyance and transfer of property, real and personal, held by the respondents as part of the estate of their testator, but claimed by plaintiff as part of the estate of Charles Tyson. The court below dismissed the petition on the ground that as to the realty it was an ejectment bill and not within the jurisdiction of the court, and as to the personalty that the title was in Mary Tyson in her lifetime, and passed by her will to her executors.

The distinction as to jurisdiction between real and personal estate is not well taken. While ejectment for the real estate as such is the remedy in ordinary cases for heirs or devisees, yet in the present case the executors are charged by the will of Charles Tyson with the administration of his real estate, as well as his personalty, and the jurisdiction of the orphans’ court to assist executors and administrators in obtaining possession and control of the decedent’s assets is very extensive: Brooke’s Appeal, 102 Pa. 150; Odd Fellows Savings Bank’s Appeal, 123 Pa. 356; Lafferty v. Corcoran, 180 Pa. 309. In Mulholland’s Est., 154 Pa. 491, the very basis of the order to pay over or secure the money was that it was the proceeds of decedent’s real estate, and must be dealt with as such.

In the present case the property in controversy admittedly had been Charles Tyson’s. At his death it passed into the possession of his widow, Mary, under his will. At her death her executors took possession of it as part of her estate, and appellant claimed it as part of' Charles Tyson’s. The title to it depends on the will of Charles Tyson, and both parties are in the orphans’ court for supervision and control of their management of their respective trusts under his will and hers. It is a case for the jurisdiction of the orphans’ court, and such was the decision when the case was here last year: Tyson v. Rittenhouse, 186 Pa. 137.

It is quite true that the courts of Pennsylvania have no jurisdiction to declare the construction of a will and rights under it by way of advice in limine, and without adverse litigants actually before them. It is not desirable that they should have. Notwithstanding some convenience, as remarked by Sharswood, J., in Willard’s Appeal, 65 Pa. 265, such practice would be contrary to the whole fundamental theory of our law under which courts do not advise but decide, and for decision there must be an actual contest. No man and no court can foresee the state of facts that may occur in the future, and ex facto oritur jus. In no class of cases is this truer than in those arising under wills. It is the unexpected, the condition of facts unforeseen, and therefore unprovided for, that gives rise to most of such litigation. And no judge can have failed to observe, not only in will cases, but in all others, how the-knowledge and self-interest of parties actually contending for success conduces to precision and accuracy in the judicial result. Hence the very noticeable fact that with all the disadvantages of inexperience, want of learning, etc., on the part of counsel that sometimes embarrass a case, it is only in the rarest of instances that the true ground of determination fails to be developed in the argument. Nothing sharpens the wits for the presentation of every possible view like the interest of opposing parties dealing with known facts in a genuine contest for victory. It is that which gives the superior value to the decision of a court of even moderate ability, over the ex parte opinions of the most learned and experienced counsel.

The jurisdiction of the orphans’ court in the present ease is not contrary to these principles. What the petition seeks is the aid of the court to the executor in obtaining possession of the assets of his testator’s estate. If his title were admitted, the cases already cited show that this is the proper court for him to come to. If the property were held on a clearly adverse and unconnected title, the holder could not be deprived of it except by the judgment of the ordinary common-law tribunals. But here it is admitted that the property was Charles Tyson’s, but it is claimed that it passed to his widow under his will. As already said both estates are in the orphans’ court, and that is the tribunal to settle this title. What the petitioner asks is not a construction of the will in advance and by way of advice, but the assistance of the court to obtain what he claims as the property of his testator. That is the jurisdictional fact, though in showing title thé petitioner must as an incident rely on his construction of the will. It has been already held that his bill will -not lie in the common pleas and that he must come into the orphans’ court for his remedy. In so doing he is not obliged to wait until property that may be finally adjudged to be his is sold and turned into an account by the executors of Mary Tyson. If his claim is valid he should have the assistance of the court to get the property now, and not be turned over to a surcharge of the other executors hereafter.

Secondly, the court below held that by the will of Charles Tyson the personalty passed to his widow absolutely, on the ground that a bequest of personalty with power to consume, sell and dispose of carries an absolute and unrestricted title to it. That such is the general rule cannot be disputed. It is not however a rule of law, but a rule of construction in aid of reaching the intent of the testator, and where a different intent is clear, the rule cannot be applied to defeat it. It was said by Sharswood, C. J., in .Fox’s Appeal, 99 Pa. 382, that “ every will is to be construed from its four comers to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction.” This is but one of the hundreds of expressions of the cardinal rule in the interpretation of wills, to find the testator’s intent, and by that is meant his actual, personal, individual intent, not a mere presumptive conventional intent inferred from the use of a set phrase or a familiar form of words. “ With the desire to reduce to a minimum the perplexity and uncertainty inseparable from the subject, courts have established certain artificial and arbitrary canons of construction, by which certain forms of expression are presumed to have certain meanings, and in doubtful cases these presumptions are held to be decisive. But all these canons are subservient to the great rule as to intent, and are made to aid, not to override it. As in all such cases care is required that tools shall not become fetters, and that the real end shall not be sacrificed to what was intended only as the means of reaching it: ” Woelpper’s Appeal, 126 Pa. 562. This Court has in numerous cases pointedly indicated its determination to restore or preserve the cardinal rule as to intention in its original and proper prominence, and to let every will stand on its own terms as every contract has always been construed to do.

Of the actual intent of Charles Tyson in his will the court below had no doubt, nor have we. The learned judge says, “ he contemplated that (his widow) might make uses of the estate which would exhaust the whole, but he never intended that her appropriation of all the property and retention of it to the time of her death should give her the right to will it away, and defeat his disposition to the brothers and sisters.” But, notwithstanding this clear view of the intent, the learned judge held that, as the testator had given an absolute estate in the first place, his intent to dispose by his own will of the unconsumed residue must fail. In this conclusion we think he gave too much weight to the form instead of the principle of the precedents. The testator’s intent to give the personalty absolutely and without restriction is an inference or presumption from his use of language similar to that which in other cases has been held to have such meaning, and if the meaning here were doubtful this presumption would prevail. But looked at by itself to ascertain this individual testator’s intent, it is perfectly clear that he did not mean to give the whole without restriction. On the contrary, his intention was to give her so much, and only so much, though possibly amounting to the whole, as should be necessary for her own comfort and enjoyment of life, and the residue, be it much or little, was to pass under his will. This disposition of his estate violated no rule of law. If he had left it to trustees with directions to sell and pay over to the widow from time to time such portions as she should in her own judgment require for her own use, there would have been no difficulty at all in its administration. But, the purpose being clear and lawful, it is the duty of courts to see that it is carried out and not defeated for mere inconvenience of form. The extent of the widow’s consumption of the estate was within her own control. Her decision was without appeal, but it must have, been honestly reached in accordance with the purpose the testator intended, and not merely color-ably to defeat his will. She had power to carry out his intentions by sale, transfer and consumption of the proceeds in such a way as to leave nothing at her death. But a transfer with intent not to consume for herself, but to preserve for others after her death, and to change the beneficiaries after her from those chosen by her husband to others of her own selection would be a fraud on the testator and his will. This is a question of fact to be determined by the court on the circumstances and the evidence in each case as it arises.

This result does not conflict with any of our decisions. They are very numerous, and we have examined them all with care. It is not necessary to go over them in detail, but is sufficient to say that they all rest on the single and indisputable principle of carrying out the intention of the testator. The intent being ascertained, it is not to be restrained or diverted by merely precatory words, as in Heck’s Est., 170 Pa. 232; or by a particular intent repugnant to the general intent, such as an effort to control the legal incidents of the estate given, as in Jauretche v. Proctor, 48 Pa. 466, and Levy’s Estate, 153 Pa. 174.

The general rule deduced in these cases is undoubtedly that a bequest of personalty with power to consume is presumed to be an absolute gift. But as already said this is not a rule of law but a rule of construction in aid of discovery of the testator’s intent. The language of our Brother McCollum in Gross v. Strominger, 178 Pa. 64, is very appropriate here, “whatever was necessary for her support he intended she should have. If the income of the estate was sufficient to afford her a suitable maintenance it was his intention that the principal should go at her decease to the children and grandson. A construction of the privilege (to use the principal if necessary for her comfort) which makes it operate as an absolute gift to the wife of the residue of the estate would defeat the plain purpose of the testator. . . . . The mere fact that the securities which represent the balance of the estate were taken in her name has no particular significance. It was not within her power to defeat his intention respecting the remainder of the estate by any such act.” In that case the money in controversy was originally the proceeds of real estate sold for payment of debts, but the principle of law is equally applicable in cases of personalty, and was so applied in the recent cases of Hinkle’s Appeal, 116 Pa. 490, and Byers’s Estate, 186 Pa. 404. It is always a question of intent.

The subject of the perversion of the power given by the use of the form, but with the purpose of defeating or evading its intent, has not been directly discussed in our books heretofore, but the principle applicable plainly appears in two recent cases. In Lejee’s Estate, 181 Pa. 416, testator left a sum to trustees to pay the interest to E. for life and at her death the principal to her children, or in default of children, over, but added that if E. “ should at any time desire to increase her income by an annuity the trustees shall at her request invest the whole or any part of the said sum in an annuity for her.” E. demanded the principal of the sum at once, and the court below decreed it to her on the ground that a gift for life with power of disposal amounted to an absolute gift, and as E. could direct the whole sum to be turned into an annuity for her benefit she could at her option take the money instead. But this Court reversed the decree, saying “ it is obvious that this award, if sustained, will defeat the unmistakable purpose of the testator in creating the trust. . . . It was his beneficiary who was to determine whether there was occasion for increasing her income. . . . Certainly this was a concession to her by the testator of a liberal discretion, in full confidence however that she would exercise it in conformity with his clearly expressed intentions. . . . The possibility that the beneficiary may exercise the discretion given to her in regard to the purchase of an annuity, and thus wholly or partially destroy the interests in remainder, is not sufficient ground for dispensing with the exercise of it and awarding the whole sum to her. The exercise of the discretion in good faith may destroy these interests, but the mere existence of it cannot.”

The other case, LaBar’s Est., 181 Pa. 1, is to the same effect, though there the discretion of the beneficiary was less absolute, the testator’s language being “ if at any time she needs any part of the principal of the bank stock she is at liberty to receive it for her support and maintenance.” She demanded the whole of it at once, and the court awarded it to her on the general principle hereinbefore discussed. ■ But this Court reversed, the present chief justice saying the provision “ was never intended to be used as a pretext for demanding and appropriating to her own use the entire corpus of the estate. ... If such an unconscionable demand as that were acceded to it would not only defeat the manifest purpose of the testator but would operate as a fraud on his residuary legatees.”

The test in all such cases is the good faith of the action of the beneficiary. If it is an honest exercise of the discretion with which the testator has clothed him his action is conclusive, but he cannot be permitted to make use of the mere form to defeat or evade the true intent and pervert the gift to a different purpose.

The decree is reversed with directions to reinstate the petition and proceed with the case in accordance with the principles expressed in this opinion. Costs to be paid by the appellees.