Brubaker's Appeal

65 Pa. 317 | Pa. | 1871

The opinion of the court was delivered, May 5th 1871, by

Sharswood, J.

The learned court below put a very reasonable and proper construction upon the decree of this court in Sandoe’s Appeal, antea, p. 314. In directing the Orphans’ Court to raise out of William’s farm whatever sum might be necessary to produce an equality of distribution between the two sons after appropriating to Jefferson the proceeds of the brick house and lot and the balance of the personal property on hand, it certainly was not intended to preclude the application of any other fund coming to William under the will to that object.

The tavern and store property, devised by the tenth section of the will, having been sold and converted into money under the Act of April 18th 1858, Pamph. L. 503, it becomes necessary to inquire whether William has any present interest in these proceeds. The tenth section referred to directs that the executors shall rent that property during the lifetime of the widow, and then proceeds : “ And at the death of my wife, if it occurs after William is of age, and if it should be sooner, then when William is of age I give and devise' the said tavern and store-property with the appurtenances, unto my two sons Jefferson and William, their heirs and assigns, as tenants in common.” If, indeed, the rents and profits are given to other parties" before the period when this devise was to take effect in possession, and are not to be appropriated to what appears to be the plain object of the testator, to make his two sons William and Jefferson about equal, there would be reason in the contention of the appellant. These rents fall into tbe residue which is divided among all tbe children in equal shares, but only “ after all tbe foregoing bequests are carried out.” One of these was that a farm should be purchased for Jefferson about equal in value to the mansion place devised to William. These rents which are thus appropriated could not accomplish the purpose of an immediate purchase. It follows that the trust of the executors having no longer any legitimate purpose to serve, was at an end when the land was converted into money, and as the interest as well as the principal is applicable to the same purpose, the principal may at once be applied to that object.

Jefferson and the guardian of William acquiesce in the decree below. In disposing of the appeal in this manner it is by no means meant to admit that the appellant, the administrator de bonis non, has any interest which entitles him to prosecute this appeal.

Decree affirmed, and appeal dismissed at the cost of the appellant.