Appeal of Patterson, 128 Pa. 269

Appeal of Patterson

128 Pa. 269 | Pennsylvania Orphans' Court, Philadelphia County | 1889

Opinion,

Mb. Justice Williams :

It will tend to clearness and brevity if we keep to the questions proposed in the excellent argument of the appellant and consider them in their order.

First. “Did the Abercrombie and Appleton debts bear interest from the dates mentioned in the will to the death of the testator?” We answer, no! They were debts in the common meaning of the word at the beginning. They were secured as-such, and treated so far as we know in all respects as debts, until the testator sat down to make his will. Then the subject of distributing his estate among his children was before him, and we are to consider what he has said upon that subjects The maxim that equality is equity among heirs is a cardinal rule of distribution : Miller’s App., 31 Pa. 337. In the absence of expressions clearly indicating a contrary intention, the courts will presume that the testator intended equality of distribution *281among his own children, in accordance with the settled policy of the law in this commonwealth: Weaver’s App., 63 Pa. 309. As between a loan, a gift and an advancement, the presumption is in favor of an advancement, because of its tendency to equality: Sampson v. Sampson, 4 S. & E. 329. With these principles in mind, we read the provision of the will on which this question depends:

“ I direct that the debts due me by the estate of my son-in-law General John J. Abercrombie, deceased, and by Samuel Appleton, Esq., respectively as aforesaid, and also any other sums charged on my books at the time of my death against my sons, daughters or sons-in-law, shall be taken into account as assets by the trustees or trustee on making partition or division of my estate as hereinbefore directed; and the said sums charged against a son shall be taken as a part of the share or shares to be set apart in the said division for or on account of such son or his issue ; and the said debts of General John J. Abercrombie and of Samuel Appleton, Esq., shall both be taken as part of the share or shares to be set apart in the said division for or on account of the issue of my said deceased daughter, Mary Ann Engle; and the said sums charged against any other daughter or her husband shall be taken as part of the share or shares to be set apart in said division for or on account of such daughter or her issue.”

The presumption that equality was intended by the treatment of all the several debts and sums charged as advances, is not weakened but strengthened by a careful examination of this provision. They are all treated in exactly the same manner, viz., as chargeable against the sons and daughters or their issue, on the general division of his estate, as so much already received. Mrs. Abercrombie’s share is not distinguished in any way from that of her brothers and sisters. All of the distributees are to be charged with what they have received, and the daughters are to be charged in addition with what has been received by their husbands, “ as part of the share or shares to be set apart in the said division for or on account of ” themselves or their issue. As these debts were thus turned into advancements by the terms of the will, they bore no interest during the life of the testator. The amount of each debt was ascertained as of the date given, and by the will it was in effect charged as an advancement as of that date.

*282Second. “ Was interest chargeable upon the advances to the children from the expiration of a year after decedent’s death? ” Yes! Such seems to be the rule in Pennsylvania and it tends to equality: Yundt’s App., 13 Pa. 575; Ford’s Estate, 2 W. N. 113. The exception is the case of the advances to General Joan J. Abercrombie and Samuel Appleton. These were chargeable with interest from the death of the testator by the express direction of the will, and the interest whether received by the trustee or not was to be applied semi-annually to the payment pro tanto of the share of the income of the estate payable to Mrs. Abercrombie or her issue. Interest is to be charged on the advancements to her from the death of her father because he has so ordered; on the advancement made to the other sons and daughters of the testator, from one year thereafter, in accordance with the rule of law above referred to.

Third. “Should the court below have decided both these questions on the present account ? ” Yes ! The total amount of income for distribution cannot be determined without such a decision, nor can the share to be awarded to each in cash. The income is to be distributed, until distribution of the principal or corpus of the estate can be made. The period covered is over three years. For the first year there would be no trouble in ascertaining the amount of the income, but after the first year its amount would depend on whether interest upon the other advancements was to be included or excluded. As the total sum would be thus affected, so would the share of each iu the several semi-annual distributions of the income.

As we differ from the court below in our view of the third question, it becomes necessary to reverse the decree of the court below and remit the record for further proceedings in accordance with this opinion.

Decree reversed.