Appeal of Walker, No. 210

No. 210 | Pa. | May 23, 1887

Opinion,

Mr. Justice Clark :

Upon a careful examination of this case, we are of opinion that the conclusions of the learned judge of the Orphans’ Court are correct, and we deem it unnecessary to consider at length the several- assignments of error, as in so doing we would but reiterate the views so well expressed in the opinion filed.

The learned court was certainly right in refusing to allow the accountants a credit for the living expenses of the testator’s family, after his death, under the second clause of his will. “ I direct and will,” says the testator, “ that my children shall live together,'and occupy together my homestead, including the entire Seventh street property, for the period of fifteen years after my death at least, and as much longer as meets with the approval of a majority of my children.” This provision of the will is certainly plain ; there is no ambiguity or uncertainty in the language of the testator, which calls for explanation, nor is there in the context any repugnancy which requires construction, to reconcile even a seeming inconsistency. The testator’s plainly expressed wish is, that his children should not be separated by his death, but that they might “ live together and occupy together ” the old homestead. He doubtless desired that, as long as a majority of his children was satisfied, the family relation might, for the benefit of his unmarried children, be maintained after his death as before ; but there is not the slightest suggestion by the testator that the family was not to be self-supporting. The continuance of the family relation in the joint occupancy of the homestead was one thing, and the expenses incident to the support of the family quite another. If the testator had really intended that the entire living expenses of a family of eight persons should be supplied out of his estate for fifteen years or more, it is most remarkable that he did not say so ; it is scarcely probable that he would leave a matter of that importance to mere inference. Indeed, if the testator had so intended, we might reasonably expect to find some portion of his estate set apart as the source of these supplies. No such provision is made however; on the contrary, he provides that after his debts are paid his personal estate shall at once be divided among his heirs, share and share alike ; and his real estate, which is not shown to be sufficiently productive for the purpose suggested, to be equally divided, after the expiration of the time named for the occupancy of the homestead by his children.

The manifest and main design of the testator was, with certain exceptions, particularly designated, to effect an equal distribution of his estate among his children; and that distribution, as far as the personal estate is concerned, was to be immediate, or as soon as the claims of his creditors could be satisfied. The theory of the will advanced by the appellants is clearly inconsistent with the obvious purpose of the testator. If the majority of the heirs might maintain themselves out of the funds of the estate for fifteen years, or as much longer as they should themselves see fit, an equal distribution of the estate is made impossible; for, as the learned judge of the court below well said, they could consume not only their own shares, but also the shares of the others, who either from choice or necessity should not form a part of the homestead household.

It is admitted that John W. Walker and Thomas M. Walker, the executors, have been in the possession of the testator’s real estate since his death, and that with the exception of the Seventh street property they are chargeable with the rents and profits received therefrom; but, as by the terms of the will, the real estate was neither given into their charge nor converted into personalty, the rents and profits, and also the taxes, insurance and repairs, were improperly embraced in the account. These items were therefore rightly excluded from the account by the court. It is plain, that the testator' did not contemplate that the executors would be chargeable with the payment of the taxes, repairs, etc. They were not authorized to receive the rents or profits of the real estate, and the entire personalty was to be distributed as soon as the debts were paid; hence they would have no funds in hand with which to discharge these incidental charges upon the realty during the fifteen years or more of the occupancy of the homestead by the testator’s family.

As the realty as well as the personalty was to be equally divided among the testator’s children, and the' creditors have all been paid, it would be just and fair enough perhaps, if the parties were willing, to allow the rents and profits received, and the taxes, insurance and repairs expended, to be adjusted in the account; but it was contended, on the part of the appellees, that the accountants had not in fact charged themselves with all the rents which they had actually received, and as the accountants were not legally bound to charge themselves, with any of these rents, it was, of course, futile and useless to enter into a contest of the account respecting the rents alleged to have been omitted. The only practicable method of procedure, therefore, was to turn the parties over to a forum which had proper jurisdiction of the subject matter in dispute, and in which their respective rights might be ascertained and properly adjudicated.

The adjustment of the interest on the moneys remaining in the accountants’ hands, and which were not applied to the debts, was as favorable to the accountants, we think, as they had any right to expect.

We find no error in this record and the

Decree of the Orphans’ Court is therefore affirmed, and the appeal dismissed at the cost of the appellants.