Baker & Wheeler's Appeal , 115 Pa. 590 ( 1887 )

Mr. Justice Gordon

delivered the opinion of the court March 14th, 1887.

The cardinal rule for the construction of wills is, that the intent of the testator must be gathered from the will itself. Than this rule there is probably no one that is supported by so great a multitude of authorities. Moreover, it is said in Reck’s Appeal, 78 Pa., 432, by Mr. Justice Sharswood, that all mere technical rules of construction must give way to the plainly expressed intention of the testator, if that intention be lawful. Again, where there is no ambiguity in the terms of the will, a doubt, suggested by extraneous circumstances, cannot be permitted to affect its construction: Sponsler’s Appeal, 107 Pa., 95. With these rules thus stated for our guide, we turn to the examination of the will before us, which reads in this manner: “Witness all persons I Gus C. Wheeler this day 2d of October 1869, if I should be killed or otherwise lose my life, I leave and bequeath all my property (as stated in my father’s will) to my wife Mary S. Wheelei’. Gus C. Wheeler.” Now, .confining ourselves, as the authorities requix’e us to do, strictly to the language here set forth, and we cannot perceive the slightest ambiguity, the testator had a “property” in his father’s will, a'life estate, with the power to dispose of the coi’pus by appointment. That he referred to this property and intended to dispose of it, no one pretends to question, and this would seem to fully cover the testator’’s design. How, then, are we to get beyond it? The court below seemed to think that, as he had a much lax’ger estate than he thus devised, it must be assumed that of it he did not intend to die intestate. But how dó we know this, or how do we know that he had any other estate than that devised ? Certainly we can derive no such knowledge from the will, hence it must arise from some extraneous proof or circumstance which we are not at liberty to consider. And why is it to be supposed that he did not intend to die intestate as to the balance of his property, if any such he had ? Had the devise been to a stranger, no one would have entertained the idea that he intended aught but what he wrote, the execution of the power found in his father’s will; but because the devise was to his wife, the court determined to read the will without the limitation. But it will be seen at a glance that such a conclusion could have been arrived at only through a total disregard of the above stated rules of construction. It has made a new and, perhaps, better will for Gus C. Wheeler than he made for himself; nevertheless, as it is one that he did not make, we cannot adopt it.

The decree is reversed at the costs of the appellees, and a redistribution ordered. .