Anton v. Secrist , 54 Pa. Super. 337 ( 1913 )

Per Curiam,

We cannot agree with appellant’s counsel in their first contention, that the fifth clause of the will of Elsie Stumbillig did not modify or limit the estate in fee which the words of the third clause import, and that notwithstanding the words of the fifth clause an absolute estate in fee free from any trust was vested in Annie Winter. Such words as were used in the fifth clause have always been held to create a sole and separate use trust, and there is nothing in the context, or in the extrinsic circumstances or conditions proved, which would warrant the conclusion that the testatrix’ intention was different from what her plain words unmistakably import. Nor do we think there is any room for reasonable doubt that the words of the fifth clause, “as well as the other bequests above given them,” refer to the specific gifts to Annie Winter and Agnes Conrad contained in the third and fourth clauses of the will. There is no other gift to them to which those words can apply, and, although in strict propriety of language the word “bequest” means a testamentary disposition of personalty, yet it' has a broader meaning in popular usage, which would include such disposition of realty as well. Where the context clearly shows, as it does here, that the testator used it in that sense, the rule that in doubtful cases it is safest to adhere to the technical meaning of words, must give way to the rule that the plainly ascertained intention of the testator controls the meaning of technical words. Thus viewing the will, we entertain no doubt that the testatrix, intended, not only to create a sole and separate use trust as to the residue, but also to subject thereto the gift to Annie Winter of the land in question, and that, notwithstanding the generality of the language of the third clause of the will and the omission to name a trustee, the fifth clause of the will was effectual for that purpose. See Gilbert’s Est., 230 Pa. 502, and cases there cited. It logically follows, under well-settled principles applicable to such estates, that, in the absence of a provision in the will giving her such power, she had no power to mortgage the land, and, therefore, neither the mortgage nor the judgment entered on the confession in the accompanying bond acquired a lien thereon. See Holliday v. Hively, 198 Pa. 335, and cases there cited; Sheaffer’s Est., 230 Pa. 426. There is nothing, therefore, which a sheriff’s sale on that judgment could vest in the purchaser, and an ejectment on a sheriff’s deed pursuant to such sale would of necessity fail. So far as we can discover from the pleadings and evidence, there is no disputed fact which, in such action of ejectment, would have to be submitted to the jury, but the court would be bound to declare that the separate use trust was so clearly and unequivocally established by the will that the sheriff’s sale passed no title. Notwithstanding the earnest and able argument of appellant’s counsel, we are all of opinion that the court was right in holding that this is one of those exceptional cases where a court of equity has jurisdiction. See Kreamer v. Fleming, 200 Pa. 414; Barrell v. Adams, 26 Pa. Superior Ct. 635; Gay v. Chambers, 37 Pa. Superior Ct. 41. The foregoing conclusions are so well supported by the reasoning of the opinion of the learned judge of the common pleas who awarded the preliminary injunction, which was adopted and approved by the court on final hearing, as to render more extended discussion by us unnecessary.

The assignments of error are overruled and the decree is affirmed at the costs of the appellant.