Appeal, No. 38 | Pa. | Mar 28, 1892
Opinion by
The will of Minerva Bennett, after providing for the payment of the just debts and funeral expenses of the testatrix, contains a bequest to her sister, Sidney Collins, of the sum of one hundred dollars, “ to be paid her by my executors within six months after my decease.” The testatrix then proceeds to dispose of the remainder of her estate as follows:
“ I give, devise and bequeath to my three sisters, Juliet Bennett, Matilda B. Thomas, and Rebecca L. Reid, or those of them who may survive me, all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, of which I shall die seized and possessed, or to which I shall be entitled at my decease, to hold to them or those of them surviving me, their heirs and assigns.”
The three sisters above named of the testatrix died before the latter, and the residuary clause of the will never took effect. Upon the settlement of her estate in the orphans’ court, it appeared there was no personal estate, out of which to pay the legacy to Sidney Collins. Both the learned auditor and court below held that the testatrix did not in'tend to charge the legacy upon the real estate, for the reason, inter alia, that she directs the said legacy to be paid to the legatee “ by my
It may be conceded that the personal estate is the primary fund for the payment of the debts and legacies, and that where the real estate is specifically devised, it cannot be resorted to for the payment of the legacies in case of a deficiency of the personal estate. The rule upon this subject is correctly stated in our recent case of Duvall’s Est., 146 Pa. 176" court="None" date_filed="1892-01-04" href="https://app.midpage.ai/document/estate-of-duvall-6354053?utm_source=webapp" opinion_id="6354053">146 Pa. 176, where it was held that if one dies without leaving sufficient personal estate for the payment of his bequests, they are adeemed wholly, or pro tanto, unless there is something more than the mere gift of the bequest to denote an intention that it shall be paid out of the land. In that case there was a specific devise of the real estate, and there was nothing to show that the testator intended to charge the legacies upon the land. In the case in hand there was no specific devise of the real estate. On the contrary, the will of Minerva Bennett gave the rest, residue and remainder of her estate, real, personal and mixed, to the residuary legatees. The rest, residue and remainder of her estate, consisted only of what was left after the payment of the debts and legacies. The will shows a blending of the real and personal estate into one fund for the payment of debts and legacies. It was held in Whitman v. Norton, 6 Binn. 395" court="Pa." date_filed="1814-07-30" href="https://app.midpage.ai/document/witman-v-norton-6313792?utm_source=webapp" opinion_id="6313792">6 Binn. 395, that if a testator blends his real and personal estate in a general devise of the residue, the legacies are a charge upon the lands. In referring to a similar residuary clause, Chief Justice TilgmMAN remarked in the case: “ I can conceive nothing more plain than the testator’s intention to give only what remained after payment of debts and legacies. The devise of the residue has not the semblance of a specific devise, but shows an intent to give everything real and personal which remained.” The authority of that case has never been questioned. In Gallagher’s Appeal, 48 Pa. 121" court="Pa." date_filed="1864-07-01" href="https://app.midpage.ai/document/gallaghers-appeal-6232325?utm_source=webapp" opinion_id="6232325">48 Pa. 121, the same point was expressly ruled, Chief Justice Woodward saying, in delivering the opinion of the court: “ There is one principle of decision fairly deducible from the authorities, which is enough to decide the present case: that is, that where a testator, after giving legacies, makes no specific devise of his real estate, but blending it with the
The decree is reversed at the costs of the appellee, and it is ordered that distribution be made in accordance with this opinion.