Fox's Appeal

Chief Justice Sharswood delivered the opinion of the court, January 30th 1882. Every will is to be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist, but cannot contad the construction. The order in which devises are made in a will is rarely of much importance. The legacy to the testator’s wife’s niece of the interest of $1,000, “ the said sum to be placed on first bond , and mortgage well secured, the money to be given after my wife’s decease,” as well as the specific bequest of “ the old family clock to my eldest nephew or niece living ’’ — though subsequent in order to the devise of all his real and personal estate to his wife, were clearly gifts preceding it. The will ought to be read as if they were actually written before it. Then the gift to the wife is only that which remains, ¿md that which remains he wishes to go to his nephews and nieces which may be living at the decease of his wife. The Act of April 8th 1833, Pamph. L. 219, provides that “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there are no words of inheritance or perpetuity, unless it appear by a devise over or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.” It is true that the word “estate” in this will, would have carried the fee independent of this Act, but there is not the same clear indication of intention as where the fee is expressly given. Then it might be doubted whether the gift over of what remains was not merely of what was unconsumed or undisposed of. He has added a prohibition of any gift or bequest out of his family — which, if a fee had been expressly given, might have been considered a provision in restraint of the powqr of alienation, and therefore void. [387] But as it stands, it confirms the construction that the devise was but for life. She was not to give or bequeath any portion of the estate out of the family. His family consisted of his nephews and nieces, to whom the estate was limited over. The words are not precatory merely — expressing the wish that his wife should give or bequeath the estate, or what remains, to his nephews and nieces — but the words, “ I wish,” are as mandatory as the words “I will.” The cases relied on by the learned counsel for the appellant were all decided upon the peculiar wording of the will, in each particular instance. Thus, in Hambright’s Appeal, 2 Grant 320, a sum of money was left to the wife “ for her full use during her lifetime,’ ’ and “ if any left” he desired it to go over. In Jauretche v. Proctor, 12 Wright 466, the husband named his wife as his “ sole and only heir of all his property, real and personal,” that she was not to divest herself of what he might leave, “ until after her death,” and at her death Avhat he may have left her, that is to say, the residue, to be divided, &c. Here she had ,the power of testamentary disposition, and the residue could only mean, as the gift was of the whole, what Avas unconsumed. In Church v. Disbrow, 2 P. F. Smith 219, an express power of disposition was given during life, and a mere wish expressed that she would leave the property remaining at her death for a charitable use. In like manner, in Pennock’s Estate, 8 Harris 268, the personal estate was all given absolutely with the expression of a confidence that the surplus should be divided, at the death of the life-tenant, among a class described. In Cox v. Rogers, 27 P. F. Smith 160, express power was given to the Avife to use the whole of the personal property, to provide for the family, and, at her death, “ what part of my personal property is then to be had,” to be divided, &c. It is plain that no one of these cases resembles the will now before us. No doubt they were all rightly decided conformably to the intention of the testator in each particular will. In this will we find no such intention expressed or implied. Decree affirmed, and appeal dismissed at the cost of the appellant.