Appeal of Danforth

121 Pa. 359 | Pa. | 1888

Opinion,

Mr. Justice Sterrett :

In reaching the conclusion embodied in the decree from which this appeal is taken, the learned judge of the Orphans’ Court adopted the construction heretofore given in Shupp v. Gaylord, 103 Pa. 319-330, to another bequest in the same will. That was $500 a year to testator’s wife during her natural life, “ to be paid out of the rents accruing under and from the lease of coal to the Wilkes-Barre Coal and Iron Company, if the said rents fail not to be paid; the same to depend upon the payment of rents under said lease, sufficient at least to pay the legacies herein charged thereon, and not to be paid out of or charged on any other part of ” testator’s estate. Two other legacies, one .of which is the subject of this contention, were charged on the same property, but in somewhat different language. Referring to these three bequests the testator^ in the closing sentence of the will, further directs that they “ shall be paid out only from the rents of the Wilkes-Barre Coal and Iron Company . . . and no other part of my estate is charged therewith.” The lease, executed by testator and others, was for the term of .forty years, and contained a clause of forfeiture on non-payment of rent, at the option of the lessors. Testator’s residuary estate was devised to his children. Shortly after his decease in 1876, the lease was declared void by decree of the Circuit Court for non-payment of rent. In 1878 the executors and other owners united in a lease of same premises to other parties at a reduced rental, under which payments were made more than sufficient to satisfy-the three bequests aforesaid. In Shupp v. Gaylord, supra, the court below in a clear and elaborate opinion, which was virtually adopted by this court, held that the annuity to testator’s wife was not extinguished by the forfeiture of the original lease, but that the same is payable out of the rents or income of the specific property which was the subject of the forfeited lease and is now the subject of the second lease. In other words,that the subject of the testamentary charge was not the lease itself, but the rents of the coal property described therein, that the name of the Wilkes-Barre Coal and Iron Company was used in place of the property itself, the lease then in force being regarded merely as the channel through which the rents or income so charged were received.

The bequest in this case to The Christian Chuych of Plymouth, appellee, is, “ $200 a year out of the rents accruing under and from said lease with the Wilkes-Barre Coal and Iron Company so long as the said lease runs and produces rents sufficient at least to pay the legacies herein charged thereon; to be paid yearly in each and every year while said lease produces rents as aforesaid.” The question is, whether this bequest or legacy is not also charged on the rents or product of the coal property, then leased to said company, in same manner as the annuity to testator’s wife. The learned judge of the Orphans’ Court held it was, and in this we discover no error. The controlling question was settled in the case above cited, and all that remained was to apply the principle. While the phraseology of the bequests is somewhat different, the testator’s purpose was to charge them all alike on the same fund. This is indicated at the close of the will, where the three bequests are specifically mentioned, and by necessary implication charged on same fund, with the declaration that “ no other part of my estate is charged therewith.” That purpose, however, is not discoverable from a single sentence of the will but from the entire instrument. The rents or product of the coal property, in the form of statedly accruing rents or royalties was manifestly the fund out of which testator intended not only the annuity to his wife but also the other two legacies to be paid, and on which, exclusively and in relief of every other part of his estate, they are by necessary implication charged. The then existing lease and the name of' the lessee-are mentioned merely as descriptive of the property whence the income, with which to pay the three legacies charged thereon, was to be derived. “ The lease of coal to tbe Wilkes-Barre Coal and Iron Company ” is therefore to be regarded not as in itself the object of the charge, but as descriptive merely of the source whence was to issue the rent or income on which the legacies were charged. As was tersely said by the learned president of the Common Pleas in the case above cited: In this view the legacies would be regarded as specific, in that the produce in rentals of the coal estate then leased to the company only was charged therewith, and all other parts of the estate were discharged, and demonstrative, in that the rents or produce of the coal being primarily and solely charged therewith, the particular lease was referred to as'the channel through which they were receivable.

Neither of the specifications of error is sustained.

Decree affirmed, and appeal dismissed at the costs of appellants.