Lininger's Appeal

Mr. Justice Mercur

delivered the opinion of the court, October 4th 1882.

Two of these appellants were named as executors in the last will of Samuel Lininger. This decree orders them to take out letters testamentary within thirty days, or else letters of administration to issue to the parties entitled by law. This is assigned for error. The other appellant is the widow of the testator. The language of the will gives rise to the contention. After directing his debts and funeral expenses to be paid, and giving to Ms wife Margaret the use and occupancy of all Ms real estate during her life, he proceeds: “ Next, I will and direct that after my death she shall take possession of all my personal property, and bonds, notes, accounts, and other evidences of indebtedness, and hold or convert the same into cash, as she may see proper.; and if the proceeds of my real estate be not sufficient to support -her, she is at liberty to take as much of the personal fund or money as she may see proper for that or any other purpose.” He proceeds to direct, after the death of his wife and the payment of her debts and funeral expenses, that his estate be settled, his real estate be sold, and the proceeds thereof, and of personal estate left in the hands of his wife at the time of her decease, be divided equally between his four children. He then names and appoints his two sons, John and Samuel B., executors of his will, “ with the understanding, however, that they are not to enter upon their duties as executors until after the death of my said wife Margaret.”

A will, says Blackstone, is “ the legal declaration of a man’s intention which he wills to be performed after his death.” If a testator does not violate any principle of public policy, religion or morality, nor infringe on any statute, he may make such disposition of his property as he sees proper: Bainbridge’s Appeal, 1 Out. 482.

In this will the testator makes Ms wife the principal object of his bounty. He gives to her during her life the exclusive use and occupancy of all his real estate, “ to be held and enjoyed by her as her own.” Also for like term the exclusive possession of all his personal estate of every kind, with the right to convert and use the same for her support, or for any other purpose. To her is given the sole power and exclusive right to decide how much thereof she shall use and consume. No one can call her to an account for so doing. No.one can interfere with her right of possession to every part thereof.

The testator appears to have been apprehensive that under some pretext the persons named as his executors might claim their duty required some action on their, part in regard to the property during the life of his widow. To remove all doubt on that subject, and to relieve them from all duty and obligation in regard to the property, he substantially declares they shall not assume nor exercise any duties as executors during the life of his widow. On her death, and not till then, does he authorize them to execute his will.

"Why, then, shall they now be compelled to take out letters ? The widow is still living, and protests against it. No creditor asks it, and it does not appear there are any. Letters can now be of no practical value. An inventory and appraisement of property, all of which may be consumed by the widow at her pleasure, would be useless if made. But the testator has declared they shall not now be made. The statute requires an oath by the executors that they will make a true and perfect inventory of all the goods, chattels and credits of the deceased within thirty days after letters granted, and also a just account and settlement thereof in one year, or when thereunto legally required. These duties at this time are irreconcilable with the will. As executors they are not now entitled to any possession of the property. Whether thev will ever be depends wholly on the action of the- widow. ’They 'would not be chargeable with any property which they might now inventory. They cannot make any settlement within a year, nor at any time during the life of the widow. Until she dies, all their povrers, duties and obligations as executors are in abeyance. The present granting of letters is not merely useless, but is an attempt to antagonize with the manifest intention of the testator and the whole spirit of the will. Its provisions are valid, and cannot thus be set at naught. No duties of theirs as executors can now be called into exercise for any cause shown. It follows, the Register was not authorized to order that letters be issued, and the court erred in continuing the same.

Decree reversed, at the costs of the appellees.