Davis's Appeal

83 Pa. 348 | Pa. | 1877

Mr. Justice Mercur

delivered the opinion of the court, May 7th 1877.

By the last will and testament of Thomas Passmore Hanbest he gave to the appellant the sum of three thousand dollars- per annum, payable quarterly by his executor during her natural life. He devised certain real estate specifically to his brother Philip, and certain other real estate specifically to his sister Julia. He also gave numerous legacies and annuities to various other persons.

Clause 27| of his will declares, “all my real estate is to be kept in good order and condition under the direction and care of my brother Philip, and repairs to be made to the same, from time to time, by him, as may be necessary.” In clause two it is declared that Philip “ is also to have the collection of all the rents of my real estate and interest of mortgages, and pay the same over to my executor.” By clause 20, he devised to St. James’ Church all the rent and income of a certain store, for ever. By clause 25 he directs his executor, “ after the payment of the above legacies and the expiration of all the life estates where I have given annuities,” to erect on a specified part of his estate a suitable building, not to cost over fifty thousand dollars, for the benefit of aged, infirm and crippled persons, and “for this purpose I do give and apply all the rest and residue of my estate, both real and personal, and the increase of the same, and all the rents, issues and profits thereof, for the support and maintenance of the same.”

Thus, by the terms of his will, the testator blended his real and personal estate. It is a well-settled rule of law that when they are so blended by the testator, the land is charged with the payment of legacies. The reason assigned is, that the whole may take effect, and all the legacies be paid, which is justly supposed to be the intention of the testator, when both funds are put into one: Hassanclever v. Tucker, 2 Binn. 525; Witman v. Norton, 6 Id. 395; McLanahan et al. v. Wyant, Adm’r, 1 Penna. R. 96; Clery’s Appeal, 11 Casey 54; McCredy’s Appeal, 11 Wright 442; Gallagher’s Appeal, 12 Id. 121; Brisben’s Appeal, 20 P. F. Smith 405.

In determining whether a legacy is chargeable on land in case of a deficiency of personal assets, the whole will must be taken together: English v. Harvey, 2 Rawle 305. But it may be so charged by implication. No form of words is necessary to produce this effect. Where the intent is manifest it must be carried into execution: Ripple v. Ripple, 1 Rawle 386; Wright’s Appeal, 2 Jones 258; Clery’s Appeal, supra; Gallagher’s Appeal, supra; Brisben’s Appeal, supra. The case of McCredy’s Appeal, supra, shows how controlling the general implication may be. There the testator devised lands. situate in two counties. He also gave to. each of his two daughters a specific annuity, and expressly charged! upon his lands in one county, a sum sufficient to produce said annuities; yet the court held the general intendment of the will was sufficient to charge it upon the lands in both counties.

No other conclusion can be drawn from the present will than that the testator intended the legacies and annuities should be paid, at, all events. It was not until after their payment that he directed, the-building to be erected, and gave the residue of his real and personal! estate and the increase thereof for its support and maintenance.

It is contended that this view of the case is incorrect by reason! of the testator having died within one calendar month aften- Bis execution of the will; that by the 25th clause before cited, as •well as by the 20th, he created trusts for charitable uses, which are made void by the 11th section of the Act of April 26th 1855, Purd. Dig. 208, pi. 23. It does not appear that those who might claim under these charitable bequests have ever had a hearing in court, so that they might controvert the facts alleged against them. But conceding them to be void, under the statute, without a decree to that effect, what is the result ? The property thus sought to be devised, being given to no other, goes to the heirs or next of kin, according to law. The specific legacies, annuities and devises are not made invalid by reason of the charitable uses having failed to take effect: Evans’s Appeal, 13 P. F. Smith 183.

It is a well-settled rule in equity that land or money directed to be converted by a last will and testament, is impressed with the character of the particular species of property into which it is to be transmuted. The will and death of the testator work the change, in equity. It requires no act of the executor or trustee to work the conversion. Hence it has been held that a judgment recovered against one of several legatees, among whom the fund, when made from land, was to be distributed, did not bind his interest therein, for he was seised of no estate in the land which could be made the subject of a lien: Allison, Executor, v. Wilson’s Executors, 13 S. & R. 333; Morrow v. Brenizer, 2 Rawle 185; Willing v. Peters, 7 Barr 287.

Evans’s Appeal, supra, shows that this rule of conversion does not depend on whether full effect can be given to the intended charity of the testator. There the testator had directed his real estate to be sold and the proceeds to be applied to a charitable use, but died within a month after executing the will. It was held, that although the gift was void, yet the direction to sell was a conversion. So, in the present ease, it is the language of the will which mingles the realty and personalty together and makes them a residuary fund. While the heirs and next of kin now take the property designed for charitable uses, yet they take it with its fixed character stamped upon it. The heir at law, on whom a part of the estate is allowed to descend, would seem to stand precisely in the same condition as if he had taken it as residuary devisee and legatee: McGlaughlin’s Executor v. McGlaughlin, 12 Harris 20. Both take subject to general legacies. It follows, therefore, that the annuity of the appellant is charged on the real estate cast on the heirs of the testator, and the learned judged erred in holding otherwise.

One other important question remains to be considered. That is, whether an appeal lies from the decision of the court refusing to entertain the petition. The denial is certainly a definitive decree of the Orphans’ Court. It is claimed that no appeal lies under the authority of McCredy’s Appeal, 14 P. F. Smith 428. It is there said, that no appeal is given by the first section of the Act of 23d February 1853, unless the court has made a decree discharging and exonerating some of the real estate from the lien and charge of the annuity and legacy. We think that case is clearly distinguishable from the present. There the application was made by the executors to take from the annuitants some of their security against their will. Here the annuitants voluntarily offer to release their security on a portion of the real estate. There it was said what is granted to the residuary devisee is a pure matter of grace or favor. The controlling thought expressed is, that the legal rights of the annuitant shall not be infringed upon by diminishing his security. Here the annuitant waives her rights, and offers to relinquish a part of her security. That case, however, appears to be, in part, put on the ground that the legislature designed to leave it to the discretion of the court. The questions of fact had been referred to an auditor to inquire into the circumstances, and to report on the amount and condition of the estate, and upon the expediency and propriety of exempting any part or portion of the residuary real estate, from the lien and charge of the annuity. The auditor had reported. All the facts were before the court. The merits of the case and the propriety of making the order asked for, were duly considered by the court. The application was refused. The presumption is, that it was refused on the merits. There were then strong reasons why this court should not review the discretion exercised by the court below.

The present case is entirely different. < Here there was no ascertainment of the circumstances, no inquiry into the merits of the case, no consideration as to the expediency or propriety of making the order. The petition was dismissed solely on the ground that the annuity was not charged on the residuary real estate, which we have shown to be an error in law. In sending the case back for further action ive do not mean to interfere with the discretion of the court to refuse the application on a hearing of the merits, but we hold that the annuity is a lien on the residuary real estate, and the appellant is entitled to a hearing on the merits of her application.

Decree reversed and a procedendo awarded.