Dickerman v. Eddinger

168 Pa. 240 | Pa. | 1895

Opinion by

Mr. Justice Fell,

The will of Samuel Eddinger was before this court in 1875 on an appeal in an action of ejectment. The contention then was that the will was void for the reason that it was contradictory and unintelligible, or that if susceptible of interpretation the testator’s daughter took a life estate in the realty with remainder to his son. It was then held that the intention of the testator could be ascertained: that the real estate was devised to the son, and was not subject to a life estate in the daughter: See Rockell v. Eddinger, 81* Pa. 525. The question now raised, whether the annuity to the daughter was a charge upon the real estate, was not then before the court; and we think that the learned judge of the common pleas was in error in concluding that a construction which denied a life estate to the daughter gave the real estate to the son freed of the charge of the annuity. In the opinion in Rockell v. Eddinger, supra, it is said that the words following the devise to the son did not create a life estate in the daughter, but had reference to her annuity, as there was no devise over and no other intention disclosed. To give them this effect it is not essential that they should form a separate sentence. If a plan of punctuation is adopted by which they do not, there is an express charge upon the land. If they are separated by a period, the reference to an annuity is unchanged, and the connection in which they appear gives strength to the implication of a charge.

The question whether an annuity is a charge upon real estate is one of intention. If the actual intention appears, no form of words is necessary. Unless technical words by which rules of property are fixed have been used the intention is to be gathered from the whole will. A charge cannot be created by the mere gift of an annuity, but it may be created without express words and by implication from the whole will that such was the intention. As to this rule all our cases agree, and any apparent departure from it in the decisions will be found to have resulted from the difficulty of applying the general rule to the facts of a particular case. In Ripple v. Ripple, 1 Rawle, 386, Chief Justice Gibson said: “A legacy may be charged on land by implication. No form of words is necessary to produce the effect, and when the intent is manifest courts are bound to carry it into execution.” In support of this he cites Nicholas v. Postlethwaite, 2 Dallas, 131; Hassancleaver v. Tucker, 2 Binn. 526; Witman v. Norton, 6 Binn. 395, and Dobbins v. Stevens, 17 S. & R. 13. This has since been followed in numerous cases, among them Gilbert’s Appeal, 85 Pa. 347, in which it was said by Woodward, J., “ While in order to make legacies a charge upon land it must be found that such was the testator’s intention, still it is not necessary that its ascertainment should rest upon direct expression.”

In this case the intention of the testator appears to have been, first, to give his son one thousand dollars and then to divide the balance of his personal estate equally between his son and daughter; secondly, to give his daughter an annuity of one hundred and twenty-five dollars for life; thirdly, to devise the whole of his real estate to his son. He was a man of advanced age,. and died within two months of the execution of the will. His personal estate, after the payment of debts and expenses of administration, amounted to only four hundred dollars, and his real estate was worth about four thousand. The will provided for an immediate distribution of the personalty, and there was nothing left but the realty from which the annuity could be paid. It is true that the mere fact that the testator nad no personal estate from which the annuity could be paid is not in itself conclusive of an intention to charge it upon the realty, or alone a sufficient ground for such an inference. But it is a fact to be taken in connection with other facts in arriving at a conclusion, and is of more weight when from the age of the testator and his circumstances in life it is improbable that he contemplated any change in the character or amount of his estate. The words written on the margin of the will are not without significance in its construction. They were written by the scrivener before signing. The words “ for dowery ” are more than a mere marginal note. They are connected by a bracket with three lines of the will relating to the annuity, and in the second of these lines is a caret, indicating that their omission from the text was accidental. This makes them a part of the will, and not merely a memorandum of its contents, and they are an aid in ascertaining the meaning of a clause not clear or free from doubt. They were evidently used in reference to a charge on land of the nature of a dower interest, and indicate an intention that the annuity should be a charge of that nature.

The intention to give the daughter an annuity for life is clear beyond doubt. The circumstances of the testator and the nature of his property, the direction for the immediate distribution of the personalty and its insufficiency to sustain a charge, the use of words showing that the testator had in mind a payment secured on land, and the connection in the will of the words making provisions for the daughter with those creating a devise to the son, and the direction that the payment should be made by the executor, who was also the devisee of the land, each indicate an intention to make the annuity a charge on the real estate, and taken together give rise to an implication which we think is sufficiently manifest to sustain the charge.

The order of the court of common pleas of Nov. 12, 1894, is reversed and set aside at the cost of the appellee, Dickerman, and the record is remitted with directions that distribution be made in accordance with the report of the commissioner.