Torbert v. Twining

M’Kean, C. J. Unquestionably the intention of the testator is the great polar star by which we must regulate our construction of wills. But this construction must be bounded by the words of the will itself. . The general rule has uniformly been, that unless the intent can be collected from the words, it is in vain to urge it; for otherwise we should be making a man’s will, not construing it. Vid. 1 Atky. 373, 374. We may, with Lord Talbot, (Forrest. 343,) “privately ‘1 think, ’ ’ that the devise to Mrs. Torbert, was for her separate use; but “we are not at liberty by private opinion, to “make a construction against the plain words of a will.” No technical, or other expressions whatever, such as “for [439] “the livelihood of the wife,” &c. are inserted in the will, from which we can collect, or necessarily infer, that this was meant as an independent provision for the daughter. Judging on the face of the'will and codicil, I can discover no clear intent disclosed by the testator, that the rents and profits of the plantation should not be subject to the controul, or inter-meddling of the husband of Beulah; and unless such intent does not appear, the law gives him the whole, in right of his wife. In 4 R., 67, ICEjstnbdv, J., said that the decision of Torbert v. Twining had become a rule of property in the state. Referred to in 7 S. & R., 114. As to the corn growing in the ground at the time of'the testator’s death, it cannot belong to the defendants, as executors. Shippen and Yeates, Justices, fully concurred therein. Smith, J. I own I have serious doubts on the subject. It appears by the cases in 3 Atky. already cited, that no form of *44.0] * words is necessary to create a separate trust for the -* feme, and I have met with an authority in 3 Bro. Cha. Rep. 381, that a legacy to a feme covert, “her receipt to be a “sufficient discharge to the executors,” has been decreed equivalent to saying ‘ ‘ to her sole and separate use. ’ ’ Besides in England, the plaintiff’s remedy against the trustees must have been in chancery, and if the husband came into equity to demand these profits, they would put terms on him and oblige him to make a proper provision for his wife. 2 Bro. Cha. Ca. 351. 2 Eq. Ca. Ab. 146. 1 Wms. 459. Bunb. 86. Prec. Cha. 548. 2 Wms. 639. Eorrest. 43. 313. Yeates, J. Even in England, I doubt greatly whether the Eord Chancellor would interpose his authority, if the same facts were disclosed to him, as came to the knowledge of the Chief Justice and myself, at the last assizes for Bucks county, judicially. It appeared to us that Mrs. Torbert left her husband without cause, refused to return .to him on overtures made her, and prosecuted him for adultery without cause, merely to found certain proceedings against him for a divorce, in the state of Connecticut. M’Kean, C. J. The chancellor clearly would not interpose in such a case. Judgment for the plaintiffs for 90I. 15s. já. damages, and sixpence costs.