Bainbridge's Appeal , 97 Pa. 482 ( 1881 )

Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

This contention arises under the will of one who died unmarried and without issue. He appears to have thought he had a right to make such a disposition of his estate as he saw proper, provided he did not violate any principle of public policy, religion, or morality, nor infringe on any statute. Whether he knew Blackstone had defined a will to be “ the legal declaration of a man’s intention which he wills to be performed after his death ” we are not informed. Nevertheless he did execute a last will and testament, in due form of law. After the payment of his debts and funeral expenses, he directed that all his estate be converted into money, and invested in good first mortgage security, the interest thereof to he paid half yearly to his mother during her natural life. After her death he bequeathed one hundred dollars to Norris-town Encampment No. 37 of the Independent Order of Odd Fellows, and a like sum to Curtis Lodge No. 239 of the same order. Also the sum of twenty-five dollars to each of two of his nephews named. Then “all the rest, residue, and remainder of my estate, after the decease of my said mother, and the payment of said bequests, I direct my said executor to appropriate and use for and in the erection and construction of a suitable monument at my grave, such as the amount of funds in his hands will warrant.”

In the exercise of this power, the executor selected a monument which cost seven hundred and fifteen dollars, being about ninety dollars less than the residuary estate. The court sustained him in so doing. This presents the ground of complaint. It is contended the language of the will does not justify the expenditure of so large a sum. It is claimed to be more than “ the amount of funds in his hands will warrant. This is an attempt to give undue weight to that clause and make it paramount to the previous clause appropriating the whole fund. It should be construed in connection with, and subordinate to, the former clause. He had therein directed his executor to appropriate and use “ all the rest, residue' and remainder ” of his estate for the purpose named. The whole fund was “in his hands” for that purpose. The last clause was not intended to take from him the right to so use the whole fund. The word “ suitable ” manifestly related to the form and style of the monument, which was left to the discretion of tüe executor, with the cautionary direction to have due regard to the amount of the funds. There is absolutely nothing indicating he may not use the whole fund. There is no devise over of any part thereof. The reason therefor evidently is that he expected all of it would be expended for the specific purpose named. Why then shall not due ¿ffect be given to an intention so clearly expressed ? May not 'the testator have said to the appellant as the good man of the house said to the laborer, “ is it not lawful for me to do what I will with mine own ? ”

We will not consider the wisdom or the folly of this disposition. He had a right to make it. He did make it, according to the forms of law. 'He gave the fund and clearly expressed his intention as to its use. We see no cause to set at naught his will or to impair its force. The executor made his election under it. The court confirmed his action. The appellant has no just ground of complaint.

Decree affirmed, and appeal dismissed, at the costs of the appellant.

Sharswood, C. J., dissented.