Bradford v. Bradford

6 Whart. 236, 1841 Pa. LEXIS 25

• Court: Supreme Court of Pennsylvania
• Decided: February 10, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Gibson, C. J.

Though any expressions in a.will may perform the office of technical terms, the intention must be manifest, and rest on something more certain than conjecture. This is the sum of the matter, as it is stated by Lord Kenyon, in Hay v. Coventry, (3 Term Rep. 85,) and Doe v. Mulgrave, (5 Term Rep. 323.) Guesses may be formed, said Lord Mansfield, in Doe v. Sheppard, (1 Doug. 78,) but that is not enough: perhaps quod voluit non dixit; conjectures may be made both ways. Lord Northington declared, in Stephenson v. Heathcote, (1 Eden Rep. 43,) that the court must proceed on known principles and established'rules; not on loose conjectural interpretations, or by considering what a man may be imagined to do in the testator’s circumstances. The principle is applicable in all its force to a case like the present, in which the question goes to the birthright (of those who, standing in the place of the common law heir, are not to be disinherited, except by express devise, or, as it is said in 1 Powell on Devises, 199, by implication so inevitable, that “ an intention to the contrary cannot be supposed.” It is doubtless improbable in this instance that the testator designed to leave the disposal of his real estate to the intestate laws, while he bound up his personal for a hundred years; yet I feel entirely assured that he actually intended to dispose of, not the title to his land, but at the most, the profits of it. This however is no more than ■ confident conjecture; and we. must come at last to an analysis of his language to ascertain the legal meaning of it.

The words “ worldly goods of all sorts and kinds,” though very general, are properly applicable only to personal estate; and when they stand alone in a will, they signify no more than an intention to dispose of it. In Doe v. Tofield, (11 East, 246,) Doe v. Lainchbury, (Id. 290,) Doe v. White, (3 East, 33,) Den v. Trout, (15 East, 393,) and some more recent cases, the word ‘ effects,’ the synonyme of ‘ goods,’ has been allowed, when associated with words of a broader meaning, to carry land; hut in each of these cases it was used as the equivalent of something else with which it was explicitly connected. Standing alone, it was restrained to personal estate in Camfield v. Gilbert, (3 East, 516;) and in Brady v. Cubitt, (1 Doug. 40,) Lord Mansfield said that the word legacy, in its ordinary signification, is applied to money, but that it may signify a devise of land; and so indeed it did in Hardacre v. Nash, (5 Term. Rep. 716.) The word property being usually applied in common parlance indifferently to chattels and land, has a larger signification, and may pass real estate without assistance; as it was allowed to do in Doe v. Langland, (14 East, 370.) But it may safely be affirmed, that however extensive its effect in respect to things ejusdem generis, the phrase, ‘ worldly goods of all sorts and kinds,’ when not enlarged by the context, has regard exclusively to the personal.

What, then, is there in the context of this will to enlarge it? Having ordered his worldly goods to be put under the care of his executors, and kept by them and their successors, for a hundred years, as a general fund, he directs the “ rents and profits” to be equally divided among his four children or their offspring. Now this word rents, is the only, one in the will which is exclusively applicable to real estate; and though it might extend the meaning of the word goods, its correlative, were it not itself subsequently restrained, yet the testator speaks of the shares of his sons Samuel and William, as legacies, and of portions of his estate, as- sums annually to become due. It is perfectly clear therefore, that he did not intend to give them an interest in any thing but the moneys annually arising from the fund, of whatsoever constituted. Land will doubtless pass by the word “ rent,” as it did in South v. Aliene, (1 Salk 228,) and Kerry v. Derrick, (Cro. Jac. 104); but the devisees, in those cases, became the absolute owners of the soil; and. there certainly was no design that they should become so in this. But though the terms I have mentionéd might not alone control the signification of the word rent, they are certainly introductive of limitations which are impracticable in their application to real estate. In Spearing v. Buckland, (6 Term Rep. 610,) a testator gave certain pecuniary legacies, after having, in the usual introductory clause, professed to give his estate, both real and personal; and proceeded thus: “ all the rest, residue and remainder, of my estate and effects, of ány, and what nature and kind soever, or wheresoever, I give and bequeath the same unto C. B. and J. R., their executors and administrators, in trust that they shall, from time to time, add the interest thereof to the principal, so as to accumulate the same, as it is my will that the said residue shall not be paid or payable, but at the time, and in the manner,.and to the several persons, as the said principal sum of four thousand pounds (one of the legacies before given) is before directed to be paid;” and it was held, notwithstanding the introductory clause, and the sweeping bequest of the residue, that the real . estate did not pass. The same construction was made of clauses almost as strong in Murrell v. Hurrell, (5 Barn. & Ald. 18; S. C. 7 Eng. Com. Law Rep. 8.) It must.be admitted, however, that in Burket v. Chapman, (1 H. B. 223,) equally strong expressions, exclu-, sively applicable to personal estate, such as “ having and receiving,” and “ payment to guardians,” were not allowed to restrain the generality of the words, “ all the rest and residue of my estate, of what nature or kind soever.” And in Newland v. Majoribanks, (5 Taunt. 238; S. C. 1 Eng. Com. Law Rep. 104,) Sir James Mansfield and Mr. Justice Heath, divided in opinion, whether a devise of. all the rest, residue and remainder of the estate, was restricted to the personal, 'by a direction to put the subject of it out at interest, with power to change the securities. To the infinite variety of circumstances and expressions perpetually occurring in cases of the sort, no rule of interpretation can be uniformly applied, and the, soundest minds will come to opposite conclusions in respect to them; but a decisive majority of the profession will probably concur with Sir James, that the testator, notwithstanding the generality of his words, supposed himself to be dealing with only part of his estate. In Dunnage v. White, (1 Jac. & Walk. 533,) a devise to trustees of “all the rest, residue and remainder of my estate or effects whatsoever and wheresoever, of what nature or kind soever,” was held to pass the legal title to real estate; but because the trust, as expressed, was confined to specific items of personal estate, a resulting trust of the messuage in contest, was decreed to the heir. It is truly remarked in 1 Pow. on Dev. 179, that this case is merely an instance of the exclusion of real estate from trusts which manifestly did not extend to it; but had they purported to extend to all that had been given, and had the whole been subjected to limitations inapplicable to real estate, the material parts of the case would have been much nearer to those of Spearing v. Buckland, and have brought the decisions in the two cases more decisively in conflict. ' But no more was decided in Dunnage v. White, than that general words of devise to trustees, will not be restrained merely because the declaration of trust is not so broad as the legal estate. That case, however, is a pregnant proof of the lightness of general expressions as evidence of intention, when weighed with those by which it is carried out in detail; for the testator certainly never intended to pass the legal title of his real estate, merely to create a resulting trust for his heir. Y'et no more positive and general terms could well have been used; and the case therefore furnishes a reason for not paying too much respect to sweeping expressions in any case. I take it, then, that notwithstanding an admitted discrepance of decision, the authority of Spearing v. Buckland is unshaken; and how does it affect our case I There the property was devised to trustees and their executors; here the trust is committed to the executors and their successors—a limitation equally, if not more inapplicable to land than the former; -for though title to chattels might pass to a chosen successor through the instrumentality of letters of administration de bonis non with the will annexed, the title to land could not. .Again, the terms, sums and legacies, annually payable, and annually falling due, savour as strongly of the personal as do directions to put out for accumulation, add interest to principal, and pay only at specified times. Another provision savours of it still more strongly. The devise in Spearing v. Buckland was to trustees; in this instance it is to the executors; and though comparatively little effect has been given, in the later decisions, to collocation of the subject-matter with the executorship, it is still not destitute of force. By associating the property of the trust with the duties of his personal representatives, the testator may, in a doubtful case, be supposed to have contemplated nothing but what appropriately belongs to the office. That, however, would not itself be sufficient to exclude the real estate from words which obviously-include it; but in a balancing case it might turn the scale. In conclusion, it must be admitted that every part of this will is debateable ground; yet, though the case is not entirely a clear one, we are' on the whole, of- opinion, that the real estate did not pass: and this determination supersedes the other points made at the argument.

Judgment for the plaintiffs.