Appeal of Howe

Opinion,. Mr. Justice Green: The will of the testator is very brief. The substance of its dispositions is contained in the following words : “ After the [240] payment of all my just debts and funeral expenses I do order that all my property consisting of bonds, mortgages, ground-rents, stocks and personal effects in the state of Pennsylvania be sold and after deducting my funeral expenses and debts as aforesaid I do order that the remaining sum be equally divided among the children of my sister Elizabeth D. Howe, the children of mjr adopted daughter Elizabeth Supplee, and the children of my adopted daughter Sarah Ann Schaffer.....I also give and bequeath to my dear sister’s daughter Jane all my property in Pendleton county, state of Kentucky.” The testator died seised of specific real estate in Pennsylvania which was sold for taxes after Iris death, and on the distribution of the proceeds of such, sale tlye present contention arises: the question is, did the testator die testate or intestate as to such réal estate ? It can scarcely be questioned that literally and upon the ordinary reading of its very terms, the clause relating to property in Pennsylvania has a limited signification. The words “ all my property consisting of bonds and mortgages*, ground rents, stocks and personal effects in the state of Pennsylvania” include so much of tlie testator’s property in Pennsylvania as comes within the designated description. They do not mean all the testator’s property in Pennsylvania. To . give them that meaning we must strike out as surplusage the remaining words of the clause after the words “all my property.” We have no right to do this, because the testator has inserted them, and it is not within the function of the courts to make' a will produce a certain meaning by eliminating operative words which the testator has written into it. It is his .undoubted right to do as he pleases with his own, and it is the business of the courts to enforce the wishes he has exjoressed. We are therefore not at liberty to read tMs will literally, as we would read it if the descriptive words which follow the words “ all my property ” were left out. We must declare the testator’s meaning with all those words in. The auditor in the court below held that the testator died intestate as to the real estate sold for taxes, but the learned court thought differently and held that it passed by the terms of the will. Such a ruling can only be sustained upon the theory that it is necessary in order to effectuate the testator’s [241] intention. But in ascertaining such intention, the words he has chosen must be read according to their plain and ordinary meaning, and the interpretation must be in conformity with the meaning of the words rather than with some supposed meaning of the testator. We can see no ambiguity in the words of this will, and therefore have no occasion to resort to rules of interpretation which are intended oxily for the solution of ambiguous language. One of these rules chiefly invoked in the present case, is, that a testator is to be presumed as intending not to die intestate; but another rule of quite equal, and perhaps still greater force, is, that the heir is not to be disinherited except by express words or necessary implication. Tims in Rupp v. Eberly, 79 Pa. 141, we said: “ The maxim is imbedded in the common law that an heir can be disinherited only by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed: 1 Jarman on Wills, 465. That this rule has been uniformly recognized in Pennsylvania is proved by all the cases in which the point has been discussed:" Bender v. Dietrick, 7 W. & S. 284. It is argued with great earnestness for the appellees that the words, “ all my property ” must be construed as evincing an intention to dispose of all the testator’s property in Pennsylvania both real and personal. If there were no other words of description, of course this conclusion would be inevitable, but the mere fact that there are other words, which being literally read, do restrain the generality of those words and limit them to certain individuated species of property, is itself proof that they were not intended to have tlieir general meaning; else why insert the additional words? We cannot say they were uselessly and unmeaningly written into the will. On the contrary we find them there and must, if we can, enforce them because they are there. Moreover, we have quite recently declared the meaning of the same words in a similar collocation. In Baker and Wheeler’s App., 115 Pa. 590, the testator directed as folloxvs: “ 1 leave and bequeath all my property (as stated in my father’s will) to my wife Mary S. Wheeler.” We held there was no ambiguity in these words, and that although the words, ‘-all my property,” were used [242] by the testator, their meaning must be limited to certain property of which he had a power of disposal by his father’s will. We regard this case as entirely analogous to the present. The immediate collocation in both cases limits and restrains the application of the words in their general sense. In the case we are now discussing, this conclusion is strongly enforced by other considerations. Thus the word “ground-rents ” indicates an interest in real estate, and this is given bjr express mention and the maxim expressio unius est exclusio alterius becomes applicable. But, in addition to this, the testator adds as part of the words which complete the description of the property given, the words, “ and personal effects,” thus plainly showing that while he was including, and manifestly intending to include, all property of a certain class, to wit, “personal effects,” he intended nothing more. Surely, if he had intended to include also all “ real estate ” he would have said' so in this immediate connection, or at least would not have said “ and personal effects,” 'only. Still further is this construction enforced by the consideration that the property enumerated is not given in specie, but is to be sold and the proceeds to be divided. Hence if we hold that the language in question includes all the testator’s real estate, we must hold that a power to sell all the testator’s real estate is given by this will. To the creation, and for the execution of such a power as this, there is not a single appropriate word in this will. No power to sell real estate is expressly given, except as to the ground rents; no allusion even is made to the lot and buildings on Forty-first street, or to the lot of ground on Race street, Philadelphia; much less is ■ any express power given to the executor or to any one, to sell them, and if we find such a power to exist under this will we must do it entirely by inference and without any appropriate words whatever. We are not authorized to take such a liberty. Testamentary powers to sell real estate are of the utmost importance. They are a vital part of the title to be passed to the purchaser, and should be clearly expressed and not be left to rest only upon a doubtful inference. Recurring now to the disposing clause of the will, let us repeat it in the light of the foregoing suggestions: “ I do order that all my property consisting of bonds and mortgages, ground-rents, stocks and personal effects in the state of Pennsylvania, [243] be sold,” etc. The plain and ordinary meaning of these words is that the testator directs that so much of his proporty as consists of bonds and mortgages, ground-rents, stocks and personal effects, in the state of Pennsylvania, be sold, and the proceeds divided in a certain way. As to any other property he may own in Pennsylvania there is no direction. He takes especial care to order the sale of all his personal property, and one kind of real estate. Other kinds of real estate are not included, and that circumstance is evidence they were not intended to be included; but all kinds of personal estate are included by express mention, and this is most persuasive evidence that he could not have intended to include specific pieces of real estate not mentioned or embraced within any clearly apt words of general description. When the testator desires to dispose of his real estate in Kentucky, he speaks with perfect plainness thus: “ I also give and bequeath to my dear sister’s daughter Jane, all my property in Pendleton county, state of Kentucky.” If he had desired to make a similar disposition of his property in Pennsylvania we must infer he would have used similar words. The fact that he did not, is evidence that he did not so intend, and as this view of the case conforms to our view of the other aspects of the will, we are obliged to hold that the real estate in question, not having been devised away from his heirs, by the will, passed to them under the intestate law, and therefore they take the fund arising from its sale. The decree of the court below is reversed at the cost of the appellees, and the record is remitted with instruction, that the fund in court be distributed according to the report of the auditor.