Long v. Paul

[462] Opinion, Mr. Justice Mitchell: The draughtsman of this will had a very limited command of the English language, and even this was evidently hampered by the recollection of the form book. But taking the whole will together the testator’s intention is reasonably clear to give his wife the use and income of his whole estate so long as she remained his widow, and of half of it in case she re-married, but not in either event to give her more than a life estate in the realty. The lands are expressly given to her “ to keep for her own use, as long as she keeps my name,” which is plainly a gift during widowhood, and therefore, an estate for life determinable on a second marriage. In this regard the case is not distinguishable from Cooper v. Pogue, 92 Pa. 254, and indeed is by no means so strong a case for plaintiffs in error’s contention as that was. The first devise as to realty is of the “ improvements and income ” of his dwelling house, and it is conceded that these words in general carry the land. But the gift of the improvements and income is only “ so long as she keeps my name,” and cannot be more effective than a gift of the land itself, which, expressed in those terms, would not extend beyond a life estate. Nor is this estate enlarged by the provision that she shall pay the debts, and if she cannot (otherwise) she shall sell so much of the land as will enable her to keep the rest. This is only a power, not an estate, and is limited to the payment of debts, thus merely enabling the devisee to do in her own way what the law would do compulsorily for her without this provision. So far indeed as this clause of the will bears upon its construction at all, it would seem to indicate that the testator himself did not intend to give a fee; for, if he had done so, the power of sale would have been superfluous, except as a matter of convenience on account of the possibility of the determination of the estate by a second marriage. But after the devise to the widow so long as she remains unmarried, there is a provision for the case of her re-marriage, in which event she is to have “ the one half of all my real and personal property for her own use, and the other half I bequeath to my three sisters ” etc., and the further provision that the executor shall make the division, and if it cannot be done without spoiling the whole, then he shall sell the property and [463] “divide the money as directed;” and it is argued that this is a gift of the corpus of one half in case of re-marriage, and therefore, unless the first estate was a fee, a larger provision in case of second marriage than in the event of remaining a widow, which would be clearly contrary to the testator’s main intent. While a fee in one half would probably have been called by the early lawyers an estate of higher dignity than a life estate in the whole, 1 am not aware of any rule which would enable us to say as a matter of law that it was a larger or more favorable provision for a widow. That is a question of fact which depends on circumstances, and must always be largely a matter of individual choice. But it is by no means clear that this is the proper construction of the provision in ease of re-marriage. On the contrary the repetition of the phrase “for her own use” seems rather to be meant to continue the idea of a life estate contained in the preceding clause, and if so, the direction to the executor to make the division of the property, and if that cannot be done, to sell, and divide the money, would be subject to the same limitation, to wit, to her own use for life. As the widow however did not re-many, our only concern with these parts of the will is their bearing on the construction of the previous clause, and as to it they give us very little light. On the whole will, even if the intent to give only a life estate were more doubtful than it is, we could not distinguish this case from Cooper v. Pogue, already cited. With variations of language the substance of the gifts is identical, and while will cases are rarely precedents for more than the principles they illustrate, yet where there is such substantial identity, not only in intent but in expression, the prior case is at least very strong confirmation of the correctness of the view we have taken of the present. And the same remarks apply with great force to the notably analogous case of Nash v. Simpson, 78 Me. 142. The learned judge below gave the true construction to the will, and we do not think his reference to the auditor’s report, etc., in a previous cause under the same will, was going outside of the case stated for facts, but only a reference by way of illustration and confirmation of his views, to an authority that was necessarily very pertinent. Judgment affirmed.