Brownfield's Estate

8 Watts 465 | Pa. | 1839

The opinion of the Court was delivered by

Kennedy, J.

The executor and accountant in this case claims a credit for 850 dollars, which he paid to the widow of the testator in her lifetime as one-third of the personal estate which remained after payment of the debts, and which, as the accountant alleges, she was entitled to receive as a legacy bequeathed to her by the testator in his will. The bequest is as follows:,—-“First, I give and bequeath to my beloved wife, Mary Brownfield, one full third of the profits of my real estate, and one-third of my personal estate, during her life, after my debts are paid.” The testator then gives and bequeaths to his eldest daughter, Elizabeth Brownfield, she •being a lunatic, meat, drink, food and apparel, washing and lodging, as her situation may require, to be taken out of his real and personal estate, at the discretion of his executor. Also, to. his daughters Lydia and Sarah Brownfield, one good feather bed and •bedding apiece; after which he gives in the following words:—“ I also give and bequeath to my daughters, Ann and Lydia, and to my youngest son, Isaac Brownfield, the profits of the other two •remaining thirds of my real estate, during the life of said wife, Elizabeth and Ann Brownfield; and the remainder of my personal estate, I give to my daughters, Ann and Lydia Brownfield, equally, the support of my eldest daughter, Elizabeth, being taken out as aforesaid.” Now it is clear, I think, that the testator gave by his will one-third of his personal estate, which should remain after payment of his debts, to his wife during her life, without any deduction from or charge upon it whatever. It is true, however, that he afterwards charges his real and personal estate with the support and maintenance of his daughter Elizabeth; but then this charge, in order to render the several parts of the will consistent with each other, can only be understood to embrace the two-thirds thereof not given to his wife, after taking therefrom the 'specific legacies, consisting of beds and bedding, bequeathed, to his daughters Lydia and Sarah. Unless then there be a clear limitation of the third of the personal estate given to the widow, over to some other person or persons after her death, I take it that she was entitled to receive it from the accountant, and that he was bound to pay it to her without requiring any security from her except to refund for the purpose of paying debts which might thereafter be made to appear to exist against the estate. But if he omitted to take, or did not think it necessary to require such security, the only consequence was, that he made himself liable to pay such debts out of his own funds, not exceeding the amount that he paid to the widow. The question then presents itself, is this third of the personal estate which was bequeathed to the widowj'given over after her death by the testator, in his will, to any other pérson or persons. It is claimed and insisted on for Ann and Lydia Brownfield, two of the daughters of the testator, who are the appellants here, that it is limited over to them by the following clause in the will: “ and the remainder of my personal estate I give to my daughters Ann and Lydia Brownfield, equally, the support oí my eldest daughter Elizabeth being ihken out as aforesaid.” The will, from its general phraseology, appears to have been drawn by a person who had acquired some knowledge of the appropriate use of terms employed in disposing of real and personal estate respectively by will; and he would seem to have avoided the indiscriminate use of the same words in disposing of the estate, whether it was real or personal; and if such were the case, it is not likely that he would have used the word “ remainder” in this last recited clause, if the intention of the testator had been to limit the third of his personal estate, which had been given to his wife for life, over to the appellants after her death; because the law does not allow of a limitation of personal estate by way of remainder, in the proper sense of the term, after a previous gift of it to another for life, 2 Rop. on Leg. 351, though it will permit it to take effect as an executory bequest, where it is clearly and unequivocally so limited over. But it is obvious that is not the sense in which it was intended to be used here; because, then it would only have included that portion of the personal estate which was given to the wife for life, and not any portion of the remaining two-thirds. But from the words used in the latter part of the clause last recited, this was the identical portion of the testator’s personal estate to which he intended to refer by the word “ remainder.” For, having shown, as I think above, that the two-thirds of his personal estate, which remained after the third allotted to his wife, and taking out of the said two-thirds the specific legacies of the two beds and bedding, given to Lydia and Sarah, was that portion of his personal estate which the testator has charged, and intended to charge with the support of his eldest daughter Elizabeth; it follows inevitably that the same portion of his personal estate which he had charged with the support of Elizabeth, is the same which he has given, subject to this charge, by the last recited clause to Ann and Lydia, the appellants; for the words of it are, “ the remainder of my personal estate, the support of my eldest daughter Elizabeth being taken out as aforesaid. This support was not to be taken out of the wife’s third; and, therefore, it cannot be any part of that remainder of the testator’s personal estate that is-given by this clause to Ann and Lydia. This being the case they have no interest in it, nor claim upon the accountant for it. The wife was entitled to receive it to dispose of as she pleased, there being no limitation over of it after her death. See 5 Johns. Cha. Rep. 348.

Decree affirmed.