Amelia Smith's Appeal
The opinion of the Court was delivered by
We lose no material word or idea of this will when we say, that by it the testatrix gives all her real and persоnal estate to her children in equal shares, and provides that, in case of the death of any of them without issue, his or her portion shall be equally divided among the survivors. What estate did each child takе under the will ? It is very clear that each took an estate tail in the land as in the cases of Laрsley v. Lapsley, 9 State R. 130, and Eichelberger v. Barnitz, 9 Watts 447, and that of course was John’s estate.
What, then, is the right of his widow? At common law a widow is entitled to dower out of any estate of inheritance of her husband, fee simple or fee tail, to which her issue might have been heir; and, under our law, the widow of a man dying without issue is entitled to one-half of his real estate during life. That is, in estates out of which she would before have been entitled to common law dower, she is now entitled to what may be callеd statutory dower, Hence it follows, that the appellant is entitled, during life, to the undivided half of the real estate devised in tail to her late husband.
Now as to the personal property. Let it be notiсed that the legacy is in its terms absolute, and that it is qualified only by the bequest over on his death without issue. But thesе are words of entailment, and therefore, when applied to personal estate, they рass the absolute property: 1 Meriv. 20; 3 Id. 176; 2 Keene 57; 2 Bro. C. C. 33; 3 Ves. Jr. 99; 17 Id. 479; 19 Id. 73; 1 Edw. 157. A different construction is usually put upon the phrase “dying without leaving issue,” when applied to personal property: 2 Rop. on Leg. 1551.
It is a general, not to say a universal rule, that words which, when applied to land, would create an estatе tail, will,, when applied to chattels, pass the entire interest. How can it be otherwise ? Chattels cannot be inherited. They pass to one set of representatives, and land to another. The рersonal representatives cannot take land by descent, nor the real representаtives,
There is nothing in this devise to take it out of the general rule. Not one word indicates an intention to limit the interest of the first takers to a life estate. It is not the profits that are to be ■ paid to them. No trustees are appointed to take charge of the fund. But executors are aрpointed to settle up the estate and “dispose” of it as directed, that is, to “divide” it among the сhildren.
To construe it a life estate in the first takers, would be to prefer the second takers, who are unknown, to the first, who are known, contrary to the rule which prefers the primary to the secondаry objects of the testator’s bounty. It would be giving a life estate in chattels, which some of the legatees might never be able to enjoy, because of their inability to give adequate security. In casеs of doubtful construction the law leans in favor of an absolute, rather than a defeasible estаte; of a vested, rather than a contingent one; of the primary, rather than the secondary intеnt; of the first, rather than the second taker, as the principal object of the testator’s bounty; аnd of a distribution as nearly conformed to the general rules of inheritance as possible. If this cаse were doubtful on the words of the will, these considerations would rule. it. But it is not doubtful. John, on the death of his mother, took a vested absolute title to one-ninth of her personal property, and on his deаth his administratrix became substituted to his right.
Decree. — This cause came on for hearing on the apрeal of Amelia Smith from the decree of the Orphans’ Court of Philadelphia county, in the distribution of the funds in the hands of William W. Smith and Harrison Smith, executors of Matilda W. Smith, decéased, and was argued by counsel, and thеreupon, on consideration thereof, it is adjudged and decreed that the decree of thе said Orphans’ Court in the premises be reversed and set aside, and this Court, now proceeding to make such decree therein as the said Orphans’ Court ought to have made, do decree and deсlare that, under the last will of Matilda W. Smith, her son John Gr. Smith and the other devisees acquired a fee tail title as tenants in common to the land thereby devised, and an absolute title, to the personal estаte; that, on the death of the said John, his widow Amelia became entitled to a life estate in onе-half of his share of the real estate, and that, subject hereto, his said share goes over as a vested remainder in fee to the surviv