Lininger's Appeal

Mr. Justice Gordon delivered the opinion of the court, October 5th, 1885. ■' .We cannot regard it otherwise than as remarkable that, in the face of the very clear and explicit terms of the will of Samuel Lininger, and the previous intimation of this court, as found in Lininger’s App., 5 Out., 161, these appellants should have been surcharged with the McElhare [401] judgment. In that ease the attempt was made, in contravention of the expressed will of the testator, to compel the executors to take out letters, but we refused to sanction the effort thus made. Mr. Justice Mercur, in delivering the opinion of this court, remarked inter alia: “An inventory or appraisement of the property, all of which may be consumed by the widow at her pleasure, would'be useless if made.” We need hardly add, that this decision positively settled the construction of the will in favor of the widow’s absolute right of disposition so far as the personalty was concerned ; otherwise the executors must have had duties to perform during her life, in the way of controlling her use of the property, which would have required the taking out of letters. If then, as the learned justice says, she could consume the personal estate “ at her pleasure,” without restraint of any kind, I cannot understand how it could have been put more completely in her power, neither do I understand why, having such absolute control over it, she could not give it away if she chose so to do. The intention of the testator cannot be doubted, for it is expressed in the plainest possible language on the face of the will. He confers upon his wife, (1) full and exclusive power over his real estate dining her lifé, “ to be held and enjoyed by her as her own.” (2) The power to take into possession, hold, or convert into cash, his entire personal estate, and to use for her .support and maintenance as much thereof as she may see proper '•'■for that or any other purpose.” (8) That there might be no one having a shadow of legal right to call in question, or interfere with, this her absolute and unqualified right of management and disposition of the property thus bequeathed to her, he declares that his executors shall have no power to act as such until after his wife’s decease. If all this is not sufficient to vest in the wife an absolute power of disposition over the testator’s personal estate, we know not what language would suffice for that purpose. The case is even stronger than that of Cox v. Rogers, 77 P. S. R., 160, or Myers’ App., 48 Id., 26; in the first of which, under a will reading as follows, “ my wife is to have the whole of ray personal property to enable her to raise, support and provide for the younger part of the family, and at the death of my wife what part of my personal property is then to be had shall be equally divided among m}r daughters,” it was held that the gift was absolute to the wife. In the second, a bequest, “ unto my beloved wife Ann, as much of my personal property as she chooses to retain;” held to pass the whole personal estate, choses in action included. It is urged, however, that she was permitted to make use of the personal property only in case the proceeds of the realty [402] were insufficient for her support, and that in the absence of that contingency she could use it for no other purpose. This is a mistake; for as she was empowered to use so much of the personal fund or money as she might think proper for her maintenance or “for any other purpose,” we cannot thus limit her power. To support the hypothesis as stated, we must ignore the important phrase last cited, and this would be an unwarranted mutilation of the will. As, then, she was clothed with the power to take possession of, convert and dispose of this personal estate for her maintenance, or otherwise, as she saw fit,-who was to be the judge of how, or when, she was to exercise that power ? Whether her necessities required the use of the personal fund; whether it should be appropriated only to her own personal use, or whether she might give it away ? There were and could be no executors until after her death, and, as we have already determined, the Orphans’ Court had no control over the matter, so that if the widow was not the sole judge of her own necessities and desires, the will has no meaning. In order, therefore, to sustain the will before us, and give force to Samuel Lininger’s bequest to his widow, we reverse the decree of the court below as to the surcharge of the McElhare judgment (17,332.00), and the distribution made of the same, and affirm the balance of said decree. We- also order that the costs of this appeal be, paid by the appellees.