176 Pa. 366 | Pa. | 1896
Opinion by
The question at issue in this case is confined within narrow limits. It is a perplexing question nevertheless, rendered so chiefly by the circumstance, that we find ourselves obliged to differ with the learned court below in two opinions delivered on the same question, at different times, by two of the very able and accomplished judges of that court. As we view the case it resolves itself into a mere question as to what was the intention of the testator as expressed in his will, in regard to the subject of interest on the advancement to his daughter Mrs. Bell. Two or three perfectly well established rules prevail in regard to the general subject. One is that advancements do not of themselves bear interest. Another is that if interest is to be charged on an advancement, it can only be done by force of an intent of the testator to that effect, and that intent must be clearly expressed in the will: Miller’s Appeal, 31 Pa. 338; Porter’s Appeal, 94 Pa. 332. It is apparent therefore, that the only subject of discussion is what is the expressed intention of Henry Famum in relation to the matter in controversy.
It is beyond all question that Mrs. Bell was to be affected by a charge of interest on her advancement. An advancement was made to her by her father after the main will was executed, and it amounted in the aggregate to 16,250. The will was executed on August 9, 1851. By a codicil executed on November 1, 1852, he recited that after the making of the will his daughter
It cannot be doubted, in our opinion, that this is not in any literal sense, a direction that the advancement made to the daughter by the testator in his lifetime shall bear interest. If such had been the testator’s intent it would have been properly expressed by a simple direction to that effect. In point of fact it is a direction that the principal of the advancement should be added to the capital or principal of the testator’s estate so as to reduce the share of the daughter in the income of the estate as it had been given by the will, by an amount equal to 6 per cent' of the sum advanced to the daughter. For the application of this direction we must recur to the will. By the terms of that instrument two annuities were directed to be paid by the trustees of the estate, one of $500 to the testator’s sister, and the other of $600 to the testator’s widow, both during their lives respectively, and these annuities were to be paid out of the aggregate income of the estate. The will also directed that the residue of the income of the estate, and the whole of the income after the deaths of the two annuitants, should be divided every year into equal parts among the testator’s children who should be living at the time of the annual distributions, the children of
The testator’s sister died in 1881, but his widow did not die until October 31, 1894. The total advancements to Mrs. Bell amounted to 16,250. The payments of income to the children or their representatives were to continue until the last of the children was dead, and thereupon the principal of the estate was to be distributed to the persons who would be entitled thereto under the intestate laws of the commonwealth if the testator had lived until that time and had then died intestate.
It is very manifest that the testator supposed that his estate would yield enough income to pay the two annuities, and also to pay his several children an annual sum which would be greater to each than the annual interest at 6 per cent on the amount of his advancements to Mrs. Bell, because he made provision by the codicil, only for a reduction of the share of income which would be due to Mrs. Bell, by an amount which would be equal to the interest at 6 per cent of the total sum advanced. But there could be no such reduction unless Mrs. Bell’s share of the total income would be more than the amount of such interest. It must be conceded that in making the computation of the total income to be divided the amount of the interest at 6 per cent on Mrs. Bell’s advancements would have to be added to the income derived from other sources, and that the aggregate sum thus ascertained would have to be divided into three equal parts, of which Mrs. Bell would receive the one third of the aggregate less the amount of the interest at six per cent on her advancement. If the estate had yielded income enough to permit of such a distribution the method would have been perfectly simple, upon the ordinary principles of hoteh pot distribution, and there would have been no occasion for any contest about it. But owing to unexpected causes the estate yielded for many years only a little more income than was necessary to pay the two annuities and there was but a trifling amount of income each year for distribution. When the sister of the testator died in 1881, the amount of her annuity was added to the general income for distribution increasing it by that sum. The testator died in 1855. After the
The question now arises, was it the intention of the testator that Mrs. Bell was to pay absolute interest at 6 per cent on the whole amount of her advancement for all the years that might elapse from his own death until the death of all his children, or until the others would receive as much income as would equal the aggregate amount of 6 per cent interest on the advancement. Two of these children are still living and the length of time they may yet live is a matter of entire uncertainty. Nearly forty years have now passed and this interest charge is still running. Did the testator intend that such an enormous burden should be loaded upon his daughter? He knew that it might be many years before the last of his children would die, and he knew that the advancement could not possibly ever produce a dollar of interest because it had already been spent in such a manner that it could not produce interest. And he further knew that his daughter was never to get any part of the principal of his estate, either by hotch pot or in any other mode. The whole of the principal of the estate was expressly given by the will to the persons who would have inherited his estate under the intestate law if he had been alive when his last surviving child died, and had then died intestate. If the children of Mrs. Bell at that time have died without leaving any descendants, neither Mrs. Bell nor her children would ever get a single dollar of the principal of the estate. In order to equalize Mrs. Grubb and Henry Farnurn with their sister Mrs. Bell it would only be necessary that they should each receive from the estate as much money as' was advanced to her, to wit, 16,250. It seems to the writer, therefore, that when the amount of cash income received by them respectively reached $6,250, the income thereafter received should be divided equally between all three until the time of final distribution of the principal arrived.
It is manifest that the contingency contemplated by the testator did not arrive, because' there never was an amount of income over and above the annuities, which would yield a sufficient sum to each of the children so that the share of Mrs. Bell
The decree of the court below is reversed, and the record is remitted with instructions to make distribution in accordance with this opinion, the costs of this appeal to be paid by appellees.