Barnett's Appeal
104 Pa. 342
Pa.
1883
Check Treatment

The opinion of the court was delivered January 7th 1884 by

Mr. Justice Paxson.

Thе testator left a widow and one grandson surviving him. He left no other lineal descеndants. After providing for the widow and grandson by his will, he gave a legacy of $500 to liis sister Rebecca Knott, and then disposed of tiie residue as follows : “ All the rest and remainder of my estate, after paying my funeral expenses, just debts, bequests hereby made, &c., I give and bequeath to my four sisters, Jean, Nancy, *348Rebecca and Rachel, to each one-fourth, ‍‌‌​​​​​​​‌​‌​​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​​‌‌​‌‍to them and to their •heirs.”

Two of the sisters, Jean and Raney, were dead at the time the testator made his will, and this fact was known to him. The other sisters Rebecca and Rachel died during the lifetime of the testator. All of them left children who survived the testator. The Auditor and the court below held that the legacies to all of the sistеrs lapsed by reason of the death of the respective legatees during the life of the testator, from which ruling this appeal was taken.

It was urged for thе appellants that the word “heirs” in the residuary clause was not used in its ordinary sense as a word of limitation, but that the testator intended it as a word of purchase, and to bequeath ‍‌‌​​​​​​​‌​‌​​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​​‌‌​‌‍to the heirs of his sisters an estate proceeding directly from him to them. A number of authorities were cited to show that in wills the word heirs is sometimes construed to mean children. Guthrie’s Appeal, 1 Wright 13, was especially relied upon, where Justice Strong said: “ Undoubtedly the word heirs may be shown by the context to have been used in the sense of sons, daughters, children, &c., and when it is so used thе rule in Shelley’s case is inapplicable.” There are several cаses where the word “ heirs ” has been held to mean children, but they were all instanсes where such was the evident intent of the testator as gathered from the will itsеlf. This will contains ‍‌‌​​​​​​​‌​‌​​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​​‌‌​‌‍nothing from which such an intent can be inferred. And the fact that the testаtor knew that two of his legatees were dead when he made his will, and intended the legacies to go to their children, can make no- difference unless hе has expressed his intention in his will: Sword v. Adams, 3 Yeates 34; Comfort v. Mather, 2 W. & S. 450; Campbell v. Jamison, 8 Barr 498; Sloan v. Hanse, 2 Rawle, 28; Dickinson v. Purvis, 8 S. & R. 71; Ritter v. Fox, 6 Wharton 99.

It would be unprofitable to pursue this subject further ; indеed I would have not said so much but for the reason that wo were asked to abate somewhat the rigor of the old rule, and give effect to what the appellants contend was the intent of the testator. Our answer is that the decree of the court below carries out the testator’s intent so far as he еxpressed it in his will, and that the rule referred to is a rule of property, sustained by а long line of authority both in England and in this country and too firmly embedded in our system of law to be uprooted by anything short of an Act of Assembly. There are already two stаtutes in this state which have to some extent modified the rule of the common lаw, viz : the Act of April 8th 1833, which saves the lapse in favor of a child or other lineаl descendant, and the Act of May 6th 1844 which contains a similar pro*349vision in favor оf the children of a brother or sister where the testator ‍‌‌​​​​​​​‌​‌​​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​​‌‌​‌‍leaves no lineаl descendants. Neither Act applies to this case.

There is no merit in the widоw’s claim to have the testator’s debts, expenses of the administration and сosts of audit deducted from the residuary fund. There is no residuary fund nntil the debts and expenses are paid. The testator gave bis widow one-third of all his personal property absolutely, excepting however from this bequest the money for which bis farm should be sold. This amount was $9,897.76. Iio gave her the interest on one-third of this for life; the two bequests to be in lieu of dower. The claim of the widow would add about $1,000 to her share, and deduct that much from the grandson. The reason assigned for her clаim is that the bequests in her favor are in lieu of dower; hence slie is a purchаser, and as to her there can be no abatement. It is not a question of abatement. The gift of one-third of the personal estate is a gift of oue-third оf what may be left after the payment of debts and expenses. As this is ali her husband left her there is no abatement. We find no error in this record.

The decree is affirmed and the appeals dismissed ‍‌‌​​​​​​​‌​‌​​​​​​‌‌‌‌‌​‌‌​​​‌‌​‌‌‌‌‌‌‌​​​​​‌‌​‌‍at the costs of the respective appellants.