Garman v. Glass , 197 Pa. 101 ( 1900 )

Opinion by

Mb. Justice Mitchell,

The defense set up in the affidavits was clearly untenable. Catharine Good by will gave to appellants “ all the rest and residue of my (her) estate,” but she had no estate in the land concerned here, which could pass by that language. Under the will of Jonas Good his widow Catharine had a life estate in the land, with a contingent power to revoke the testator’s devise over of the remainder, in case the devisees or any of them “should not be obedient to her during her natural life. ” Conceding that she was entitled to determine whether the contingency had happened, yet the mere possession of the contingent power did not in any way enlarge her estate. It was a power in derogation of the testator’s primary intent, and nothing less than an affirmative decision and declaration on her part that the contingency had happened, would be sufficient to revoke and defeat his express gift. There was no such decision or declaration here. The gift of Catharine to the appellants was of the “ residue ” in the most general terms, which could be fully satisfied by the personal or other property that could be fairly called her own, without resort to that of the testator over which she had only a power of appointment. Had she determined the happening of the contingency in her lifetime and then undertaken to convey or devise in fee, an entirely different question would be presented.

The title set up by appellants under the will of Catharine Good cannot be aided by the Act of J une 4,1879, P. L. 88. The powers of appointment covered by that act are unrestricted, or absolute powers depending only on the will of the donee, and the operation of the act is in the regulation of the mode of their exercise by raising a statutory presumption of the purpose to execute them by a general devise or bequest, unless a contrary intention appears in the will. The act in no way enlarges or affects the power itself. It is merely another step in the general line of Pennsylvania law, that a testator shall be presumed to intend to dispose of everything within his control, irrespective of the verbal form of his testament. Of this policy sections 9 and 10 of the Wills Act of 1833, as to the passage of the testator’s whole estate, and also his after-acquired real estate, are familiar examples. Estates or powers depending on contingencies are not within the policy or the statutory rules of construction, which do not enlarge either, but merely concern their mode of transfer or execution. If Jonas Good had made his widow’s power to change his beneficiaries dependent on some one or more of them dying before her, no one would think of claiming that she could divest the remainder without the happening of the contingency. But the contingency he did require, to wit: want of obedience to his widow, was none the less a separate and indispensable preliminary fact to be established, though the tribunal to determine it was the widow herself.

Appellants therefore took no estate in the land under the will of Catharine Good, and what they took under the will of Jonas Good was a remainder in fee after the widow’s life estate, charged with one half the valuation put upon it by the testator, in favor of the plaintiff individually.

But it did not follow that plaintiff was entitled to judgment. He brought suit as administrator d. b. n. c. t. a. and as such he had no right of action unless the money was required for payment of the testator’s debts. His statement contained no such averment. The land was devised to appellants charged with specific legacies to parties named. Prima facie the administrator had no concern either with the land or the charge.

The testator had been dead more than eighteen years, and the presumption was that there were no debts of his which were now a lien on this land, or collectible out of the legacies charged on it. An averment and affirmative proof of the existence of such debts, for which the plaintiff as administrator is responsible, was a necessary part of his right of action, and in default of such proof no judgment should have been given, or can now be sustained.

Appellee has filed in this court an averment that John B. Garman, administrator and John B. Garman, legatee of one half the charge on the land, are the same person, and asks that if the court be of opinion that he is not entitled to recover the whole charge as purchase money of the property, the judgment be affirmed upon condition that he shall remit one half of the amount ascertained to be due after payment of the debts, if any, appearing upon his final account as administrator. But this cannot be done. Rights of action in different capacities, even though in the same individual, cannot be mixed and interchanged in this way. As already said the plaintiff cannot maintain this action without showing the existence of debts. The law will not compel appellants to pay the administrator to enable- him to settle debts which are presumed not to exist. Nor can the action be changed to one by plaintiff as legatee, for his half of the charge. A change of parties which involves a change of the cause of action is not within the ordinary province of amendments. And if a claim is made upon them in that form, defendants are entitled to regular summons and opportunity to be heard in a separate suit upon it.

Judgment reversed and procedendo awarded.