Fidler v. Lash

Mr. Justice Mitchell,

dissenting:

In this case, as in Wilkinson v. Buist, 124 Pa. 253, I concur entirely in the principle determined, that the duration of the power to sell depends on the intent of the testator. But in this, *94as in that case, I am unable to read the particular will in controversy in the same way as my brethren.

In the present case the testator gave his entire estate, real, personal, and mixed, to his wife for life, but with power to consume, necessarily implied as to the personalty, and expressly given as to sale and use of the proceeds of the realty. “After her death the remainder of the estate is to be divided as follows: to Charles Reedy '.....I give and bequeath twenty-five dollars; to Sarah Ermentrout......one half of the estate remaining,” etc. I am of opinion that the testator meant to treat his whole estate as one fund, to be applied to his wife’s use during her life, and whatever was left at her death was to be treated in the same way as a single fund, irrespective of whether it came from personalty or realty. There was a clear intent that the executor should make distribution, and the power to sell therefore survived.