McIntyre v. McIntyre

Opiniow, Mu. Justice Gbeen:- The will of James Boyle having been proved prior to the passage of the wills act of 1833, must be interpreted in accordance with the law as it was then established. In the case of Schriver v. Meyer, 19 Pa. 87, construing a will executed in 1831, we held that where the testator preceded his devise by the words, “ As to such worldly estate wherewith it hath pleased God to bless me in this life, I give and dispose of the same in the following manner,” he thereby evinced such an intent to dispose of his entire estate in his lands as to pass a fee simple estate in lands devised without words of inheritance. This case was followed by the same ruling in Wood v. Hills, at page 513 of the same book. In the will of Jamas Boyle the introductory words are, “ And to such worldly estate wherewith it hath pleased God to entrust me, I dispose of the same in the following manner.”’ To these words the foregoing decisions are [335] directly applicable, and the testator’s apparent intent is fortified by a consideration of the other parts of his will. He gives all his estate to his wife during her life, and then disposes of it in detail to various legatees and devisees. In the sixth clause he directs as follows: “ I will and bequeath to my daughter, Mary McIntyre, the one half of the land that I possess above the road, that is the north end. She will not have power to sell, but may leave the same to her children.” The first sentence of this clause undoubtedly, in connection with the introductory words, gives a fee to Mary. It is equally clear that the attempted restraint upon alienation contained in the first part of the second sentence is void, as being in conflict with the fee given by the preceding sentence. The only remaining question is as to the effect of the additional words of the second sentence, “but may leave the same to her children.” Do these words reduce the estate of Mary from a fee to a life estate, with a power of appointment to her children ? If the words were imperative, if the word “ shall ” were used instead of the word “ may,” there would be great, perhaps controlling, force, in the proposition that the words taken together were so indicative of an intent to limit Mary’s interest to a life estate, that we would be obliged to hold that both before and after the act of 1833 her interest was a life estate only. Bur when the testator says simply that she may leave the land to her children, and does not say that she may not leave it in any other way, we cannot say that he does anything more than merely express a hope or desire that she may so leave it. It seems to us the word may is precatory only and not obligatory, and if so it cannot defeat the otherwise operative effect of the devise. In Pennock’s Est., 20 Pa. 268, a testator, after directing the payment of his debts, provided as follows: “ Item, I will and bequeath unto my dear wife Martha Pennock, the use, benefit, and profits of all my real estate during her natural life; and also all my personal estate of every description, including ground-rents, bank stock, bonds, notes, book-debts, goods and chattels, absolutely ; having full confidence that she will leave the surplus to be? divided at her decease justly amongst my children.” We held that the absolute ownership of the personal estate was given to the widow, and that no trust in favor of the children was created by the precatory words. The widow [336] haying left a will disposing of lier estate without reference to the will of her husband, and providing for but three of her seven children, that disposition was sustained by this court in a most exhaustive opinion by Lowkie, J. He reviewed the ancient equity doctrine of the English chancery by which trusts were sometimes founded upon mere precatory words, and showed that it was not the law in Pennsylvania, and was fading out in England. In Burt v. Herron’s Ex’rs, 66 Pa. 400, we held again that mere precatory words will not convert a legatee or devisee of an absolute gift into a trustee, unless it affirmatively appears they were intended to be imperative, and the distinction was pointed out between such words and those which express a desire or request as to the direct disposition of the estate. Kinter v. Jenks, 43 Pa. 445, is another instance in which a devise to a wife with the expression of a confidence that she would dispose of it amongst the children, was held to give her an absolute estate with an unrestrained power of disposition, and not a mere life estate with a power of appointment to the children. Biddle’s App., 80 Pa. 259, also illustrates the absolute power of a wife over a fund which she was to use in the maintenance and education of the testator’s children, but without liability to account. Returning to the present case we repeat that we can only regard the devise of James Boyle to his daughter Mary as an absolute devise of the land in question, accompanied with a void restraint upon alienation, and the expression of a permission to leave the land to her children, but without the prohibition of any other disposition she might choose to make. This being so, the devise to her three daughters passes to them the whole estate in the land, and the plaintiffs are not entitled to any part of it. Judgment reversed, and judgment is now entered for the defendants with costs.