Saxton v. Mitchell

Mr. Justice Mercur,

delivered the opinion of the court, October 12th 1875.

The intention of the testator has always been deemed the first great leading rule in the construction of a will. That intention, drawn from the whole will, must govern its construction, except where the law rules the intention otherwise.

In this case the testator devised to his wife, during her life, the income of all his real estate, situated in the borough of Harrisburg, and in Upper Allen township, Cumberland county. He directed his executors to sell, after the death of his wife, all of his real estate, “ except such portions .of it as are specifically devised and reserved hereafter, and the proceeds arising from the sale of my tract of land, containing about one hundred and thirty acres, situated in Upper Allen township, Cumberland county, on the Lisburn road, (except twenty acres of woodland, of said tract adjoining Robert Bryson and Longnecker, which I hereby reserve for ever, for the use of the members of the Methodist Episcopal Church, to hold their camp-meetings on) shall be equally divided among all my nephews and nieces who may be living at my wife’s decease.”

There is no devise to the defendants in error in clear and specific terms. Their rights are dependent on the language which we have given. These twenty acres are excepted out of the tract of land which his executors are directed to sell after the decease of his wife. She is yet living. The testator for ever reserved these twenty acres from sale. His expressed object in reserving them was for “ the members of the Methodist Episcopal Church to hold their camp-meetings on.” We must assume the testator had in his mind the limited time for which the gronnd would be used in each year for camp-meetings. It is well known that such meetings do not usually continue longer than from one to two weeks. He manifestly designed to give to the members of the church to which he was attached, this temporary use each year, for religious worship. *483 So far as was necessary for that purpose, he gave it to tnem. Beyond that he withheld it. They acquired such rights only as were reasonably necessary for the enjoyment and protection of their worship. It is true a devise of the use for ever is equivalent to a devise in fee. Hence, if the testator had given to the members of the church such a use or occupation of the land as would for ever have given them the continuous and exclusive possession thereof, it might in law have given them a fee. But the qualified and restricted use given by the testator passed to the beneficiaries no right wantonly to destroy the timber growing on the land, nor to convert the premises into a beer-garden or race-course, when not occupied for camp-meetings. The land passed to the testator’s heirs, subject to this perpetual easement for the religious worship named. All rights in the land, not in conflict with the worship designated by the testator, remained in his heirs. They were obliged to suffer this land to be used by the persons and for the object stated. They took it thus charged. An easement is said to be “a privilege without profit to the servient owner, which he is obliged to suffer, or not to do something on his own land for the advantage of the dominant owner ” : Gale and Whatley on Easements 6. A right of way may be limited, both as to the intervals at which they may be used, as a way to church, and the actual extent of user authorized, as a foot-way, horse-way, or carriage-way: Id. 199.

The case stated does not set forth the whole will. We are therefore deprived of any light which other portions might throw on the part we are called upon to construe. So far as it is furnished us, we all are of the opinion that an estate in fee, in the whole twenty acres, is not given to the members of the Methodist Episcopal Church, except for the purpose specified; although in fee, the devise may be an easement only: Big Mountain Improvement Co.’s Appeal, 4 P. F. Smith 369.

Such being our view of the case, it follows that the defendants in error are limited to an occupancy of the land for the religious worship named. The legislature then had no power to authorize the title of the heirs to be divested: Grim v. School Directors, 7 P. F. Smith 437: Shonk v. Brown, 11 Id. 327; Haley v. The City of Philadelphia, 18 Id. 47.

The learned judge, therefore, erred in decreeing a sale of the twenty acres of land, and it must be reversed.

Decree reversed and judgment entered in favor of the plaintiffs in error, with costs.