Where a testator in Pennsylvania gave to his wife a life estate
in the homestead and two lots, and charged upon his goods and lands
an annuity to her, but did not mention his lands in any other part
of the will, and then, after sundry legacies, bequeathed the
surplus to be applied to the purposes of the Presbyterian church,
this surplus does not relate to his lands, which his heirs will
take.
By the law of Pennsylvania, heirs must take, unless they are
disinherited by express words or necessary implication.
Evidence of extrinsic circumstances, such as the amount and
condition of the estate &c., cannot be received to control the
interpretation of the will; it is only admissible to explain
ambiguities arising out of extrinsic circumstances.
This was an ejectment brought by the Allens, who were aliens and
subjects of the Queen of Great Britain and Ireland, to recover four
undivided fifth parts of one undivided half of a lot in Pittsburg.
They were heirs of Michael Allen and the question was whether Allen
the testator, had devised the property in question by his will.
Page 59 U. S. 387
The substance of the will is given in the opinion of the Court,
as are also the rulings of the circuit court.
Page 59 U. S. 390
MR. JUSTICE CATRON delivered the opinion of the Court.
Michael Allen of the City of Pittsburgh, made his will in 1849,
by which he bequeathed to his wife, for life, his dwelling house in
said city, with two lots of ground occupied by him and her as a
garden. He also gave her the household furniture and library. "And
still furthermore," he declares,
"that, first and foremost, there shall be secured to my dear
wife, on my real and personal estate, an annuity of twelve hundred
dollars a year, to be punctually paid semiannually during her
lifetime, and that my executors pay all the taxes on the premises
occupied by my dear wife during her lifetime."
The testator then bequeaths:
1st. To the five children of Dr. Robert Wray, five hundred
dollars each.
2d. To the managers of the orphan asylums of the cities of
Pittsburg and Alleghany, two thousand dollars each.
3d. To the pastor and sessions of the First Presbyterian Church,
two thousand dollars.
4th. To the General Assembly of the Presbyterian church, ten
thousand dollars.
5th. To the trustees of the board of sessions of said general
assembly, four thousand dollars.
6th. To the Foreign Evangelical Society, located in New York,
three thousand dollars.
7th, 8th, and 9th, he gave for the use of the Presbyterian
church, eleven thousand dollars.
10th. To the American Bible Society, six thousand dollars.
11th. To the American Tract Society, four thousand dollars.
12th. For the use of the Sunday School Union, situate in
Philadelphia, four thousand dollars.
He next declares:
"As to my debts, they will amount to very little, but and after
paying all claims and bequests, there will remain a considerable
surplus, which I give and bequeath in trust to my executors, be the
same more or less, to be applied to the religious and benevolent
purposes of the several institutions of the General Assembly of the
Presbyterian church in the United States of America, as before
mentioned,"
and then constitutes and appoints his executors who are the
plaintiffs in error to carry out the provisions of the will.
The defendants in error are the heirs at law of Michael Allen.
They sued his executors in ejectment to recover a portion of the
lands situate in the City of Pittsburgh of which he died seised,
insisting that the lands did not pass by the will.
The residuary clause was supposed to be of doubtful meaning and
obscure. To remove the alleged obscurity, the defendants below
offered to prove on the trial
"from memoranda made by the testator at the time of the
execution of said last
Page 59 U. S. 391
will and testament and upon the basis of which the same was
prepared by him, and also by declarations made by him at and about
the same time, what was his real meaning in the employment of the
word 'surplus' in the residuary clause of said will, and that the
same was intended to comprehend his whole remaining estate, as well
real as personal."
"And further, to show by other evidence, besides the said
memoranda, the actual amount and condition of the personal estate
at the time of the execution of the said last will and testament,
as well as at the period of the testator's death, and that the same
was entirely insufficient, at either of the said periods, to pay
the specific and pecuniary legacies provided therein, and this for
the purpose of explaining the meaning of the testator in the said
residuary clause, and the employment of the said word 'surplus'
therein, by showing that if the same did not embrace the real
estate, the said residuary clause would be entirely inoperative for
the reason that there was in point of fact, under such
construction, at neither of said periods any surplus whatever, as
supposed and declared by the testator himself."
On motion of the plaintiffs, the court rejected the evidence and
instructed the jury that no title vested in the executors by the
residuary clause.
On this state of facts, the first question presented for our
consideration is whether the terms of the will are sufficient in
themselves, when interpreted by their context, to carry the real
estate to the executors.
As in this instance, the testator's language must be construed
with reference to the laws and policy of the country of his
domicile, it is our duty to ascertain what the laws and policy of
Pennsylvania are so far as they may have a controlling influence in
the construction of this will.
In the first place, Pennsylvania has only so far altered the
English common law as to substitute all the children for the sole
heir, carrying out this rule of descent though the collateral
branches. This is the will the law makes in case of intestacy, and
is the policy of the state. Under the law, the heirs must take
unless they are "disinherited by express words or necessary
implication." "Conjecture, nor uncertainty, shall never disinherit
him." Such was the ground assumed by counsel in the case of
Clayton v. Clayton, 3 Binney 481, and which assumption was
sustained by the court;
ib. 486. Chief Justice Tilghman
says:
"The rule of law gives the estate to the heir unless the will
takes it from him, and in order to take it from him it must give it
to some other person. Thus we are brought back to the question are
here any words in the will sufficient to convey more than an estate
for life to the devisees. I can find none. "
Page 59 U. S. 392
In the case referred to, the testator devised a homestead to his
niece, Sarah Evans, and her children without adding the word
"heirs." That he intended to give an estate in fee was hardly open
to controversy, but the words of the will did not carry the fee,
and the court refused to follow a doubtful intention. It there came
fairly up to the rule laid down in the English case of
Mudge v.
Blight et ux., Cowp. 355, that
"Where there are no words of limitation, the court must
determine in the case of a devise affecting real estate that the
devisee has only an estate for life, because the principle is fully
settled and established, and no conjecture of a private imagination
can shake a rule of law. If the intention of the testator is
doubtful, the rule of law must take place, and so if the court
cannot find words in the will sufficient to carry a fee. Though
they should themselves be satisfied beyond the possibility of a
doubt as to what the intention of the party was, they must adhere
to the rule of law."
This decision was made in 1811, and the principles then laid
down have since been adhered to with uncommon care and
strictness.
In speaking of expressions in a will necessary to disinherit the
heir, Chief Justice Gibson, in delivering the opinion of the court
in the case of
Bradford v. Bradford, 6 Wharton 244,
says:
"The intention must be manifest and rest on something more
certain than conjecture. The court must proceed on known principles
and established rules, not on loose conjectural interpretations nor
considering what a man may be imagined to do in the testator's
circumstances. The principle is applicable in all its force in a
case like the present, in which the question goes to the birthright
of those who, standing in place of the common law heir, are not to
be disinherited except by express devise, or, as is said in 1
Powell on Devises 199, by implication so inevitable that an
intention to the contrary cannot be supposed."
It is there admitted that when the testator provided that "all
his worldly goods of all sorts and kinds" should be vested in trust
and held as one fund for a hundred years, and his children and
their descendants should receive the rents and profits, that he
most probably intended to include his lands. This, however, the
court declares, is no more than a confident conjecture, and that it
must come at last to an analysis of the testator's language to
ascertain the legal meaning of the will.
Now testing the will before us by these rules, and where can any
provision be found in it showing a plain intention to disinherit
the heirs? The lands are never named except where the wife is given
a life estate in the homestead, and two lots, and, secondly, where
her annuity of twelve hundred dollars is imposed on the goods and
lands as a charge.
Page 59 U. S. 393
But as the residuary clause is mainly relied on as carrying the
real estate to the executors, it is proper that some further notice
should be taken of its import. The testator declared that his debts
amounted to very little, and that, after paying all claims and
bequests, there would remain a considerable surplus, and this he
bequeathed to his executors, to be applied to religious and
benevolent purposes. He did not indicate any new fund, nor a
surplus arising from the sale of lands, in the concluding clause of
the will more than in any previous clause, where he provided for
the support of the Presbyterian church.
The terms of the will,
proprio vigore, being
insufficient to disinherit the heirs, the next question is whether
the interpretation thereof may not be aided by extrinsic
circumstances -- namely memoranda, declaration, and the actual
amount and condition of the estate as offered to be shown by the
defendants below.
That the court may put itself in the place of the testator by
looking into the state of his property and the circumstances by
which he was surrounded when he made the will is not only true as a
general proposition, but without such information it must often
happen that the will could not be sensibly construed. Wigram (10,
60) lays down the rule with much distinctness. Such evidence,
however, is only admissible to explain ambiguities arising out of
extrinsic circumstances, as to persons provided for, objects of
disposition, and the like. For instance, if the testator gave to
his grandson, J. S., a plantation, and he had two grandsons of that
name; or he devised his son J. his plantation on a certain river,
and he had two plantations there -- in each case proof might be
heard to show the person or thing intended. But evidence cannot be
heard to show a different intention in the testator from that which
the will discloses.
Such is the established doctrine of this Court, as was held in
the case of
Weatherhead v.
Barksdale, 11 How. 357.
The only English case we will refer to is that of
Miller v.
Traverse, 8 Bingh. 248. There the testator devised and vested
in trust "all his freehold and real estates whatsoever in the
County of Limerick, and the City of Limerick." At the time of
making the will, he had no real estate in the County of Limerick,
but had a small estate in the City of Limerick and considerable
real estate in the County of Clare, and the question was whether
the devisees could be admitted to have an issue and trial at law on
the ground that they offered to prove that by the original draft of
the will, the estates in Clare were included and the county left
out by oversight or mistake, and also that the testator so
expressed himself.
The lord chancellor was assisted by the chief justice of the
common pleas and the chief baron, and they all concurred in
Page 59 U. S. 394
holding that the evidence offered could not be heard to change
the import of the will, and refused the issue. And so it is
manifest here that if the evidence were to show all that is assumed
for it, yet it could not be heard to affect this will.
It is ordered that the judgment of the circuit court be
affirmed.