Bowlby v. Thunder

Chief Justice Mercur,

delivered the opinion of the court, February 18th, 1884.

The writing executed first is a full and complete will. It was signed, sealed and declared by the testator as and for his last will and testament, in the presence of two persons who subscribed their names as witnesses thereto. He therein gave and bequeathed unto his wife all his estate, real, personal and mixed, for her sole use and benefit, with full authority to sell and dispose of the whole, or any portion thereof, should she at any time deem it necessary to do so. This authority to sell was mere surplusage. It did not enlarge the power which the previous devise in fee simple gave her, nor did it indicate any intention to restrict her in the exercise of that power. Neither of the subsequent writings professes to be either a part of his will or a codicil thereto. The first of them is addressed “to whom it may concern.” Its purpose appears to have been to inform all persons who might feel in-, terested in the disposition he had made of his property, why he had devised his whole estate to his wife. It was by reason of his great confidence in her, who had toiled and labored with him through life, that he deemed it prudent to give her the management and disposition of their joint savings.

While he does therein express his confidence that she will carry out his intentions in the ultimate distribution of the estate so fat as in her opinion his children and grandchildren respectively, may prove worthy of her attention, yet he makes no disposition of any part of his estate, nor does he intimate any intention to restrain her free will. It is “ her opinion,” not his, which is to guide and control her disposal of the property. He does not even indicate which children or grandchildren he thinks worthy of his consideration. That thought is not suggested. On the contrary, the suggestion relates to those only that, in her opinion, “may prove worthy of her attention.” After thus stating some of his reasons for having devised his property to his wife, he proceeds in another writing to address her. It is styled “memorandum (for her).” He does not therein profess to make any devise himself. It contains recommendations and advice to her as to what he would be pleased to have her do, and as to the land in question his recommendation is more specific than in the previous writing. Not a word therein, however, indicates an intention to qualify or change the absolute devise which he had made to her, nor to take from her the right to use, enjoy and dispose of the property as her own. The fact that the will does not contain W'ords of inheritance did not prevent the whole estate of the testator in the property devised from passing to his wife, under section 9 of the Act of 8th April, 1833, as it does not appear, by devise over or by words of limitation or otherwise, in the will, that the testator intended to devise a less estate.

It is contended, howevei-, that these two writings should be considered a part of the will, and that the language therein is sufficient to create a trust. Conceding that at one time such language in a will would have been held sufficient in England to create a trust, yet the rule in Pennsylvania is now clearly settled otherwise. Words in a will merely expressive of desire, recommendation and confidence, are not sufficient to convert a devise or bequest into a trust. Pennock’s Estate, 8 Harris, 268; Jauretche v. Proctor, 12 Wright, 466; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. Smith, 219.

Standing by themselves alone, expressions of a desire or wish of the testator as to a direct disposition of his property may constitute a valid devise or bequest thereof; yet the rule is different when such expressions are used after an absolute disposition has been made. Having made an unqualified devise of his property, no precatory words to his devisee can defeat the estate previously devised. Burt v. Herron, 16 P. F. Smith, 400.

While the language contained in these -two writings must control the effect to be given to them, yet there is another fact significant of the intent of the testator. Hence, notwithstanding all the writings bear the same date, and are on one sheet of paper, yet a blank page intervenes between the first, or will, and the two subsequent writings. In thus separating them the testator manifestly further intended to indicate that they constituted no portion of his will. Still further, the first he executed with the usual formalities of a will, under seal, and in the presence of subscribing witnesses, while neither of the subsequent writings has any seal nor any witness. The fact that all the writings were probated at the same time cannot change the character previously stamped upon them. Probating does not create a will. It cannot make a will out of a writing which was not a will before. Therefore, notwithstanding the able argument of the counsel for the plaintiffs in error, we think the learned Judge committed no error in directing the jury to render a verdict for the plaintiffs below, nor in entering judgment thereon in their favor on the point of law reserved.

Judgment affirmed.