184 Pa. 80 | Pa. | 1898
Opinion by
Joseph Fleming, a dealer in drugs in Pittsburg, and possessed of a considerable estate, some weeks before making his will on October 30, 1889, took his son, this appellant, into partnership
“ I have recently admitted my son George S. Fleming as a partner in my business at No. 412 Market St. Pittsburg, (wholesale and retail dealer in drugs, &c.) Should he develop fairly good business qualities, and be willing' to continue the business after my death, I desire that he should have the privilege of doing so, and in that event and for that purpose I direct that a fair and just inventory and appraisement of my interest in said firm or business be made as provided in our articles of co-partnership, and that George shall be permitted to take and purchase the same at a reduction of twenty per centum from such valuation, and further, if his share of my personal estate which I bequeath to him in this should not be sufficient to pay for said stock and interest, I direct that a reasonable time be given him by my executors to make payment therefor, such time not to exceed five years, however, and if he should then fail ox neglect to meet his payments, I direct that the sum or sums so remaining unpaid shall be deducted from his share of my real estate herein devised to him axxd be added to the shares of his sisters in such real estate.”
By a codicil dated Januaxy 29,1890, he modified the bequest thus: ■ ...
“ I, Joseph Fleming', the above named testator, do hereby make and declare the following' codicil to my above'written will. Upon further consideration it appears to me that the good will of the drag business x'eferred to in the tliix'd item of my said will is of so much value, axxd xny soxi’s present opportunities for making money are so good, I ought not to give him the additional advantage of a twenty per cent discount oxi the stock. I therefore hereby revoke that clause in said itexxx which allows him to take the said stock, etc., at a discouxxt of twenty per cexxt from the valuation thex'eof, and I xxow will and direct that my son George be allowed to take said stock, etc. at the valuation that shall be placed thereon by the appraisexnent made as in said third itenx provided.”
If the intent of the testator with regard to charging interest on the appraisement can be ascertained with reasonable certainty from the will, that intent must control; if we cannot find the intent from that instrument, then, to determine the liability we must adopt the rules of law applied in like or analogous cases. The learned judge of the court below was of opinion, that the will clearly disclosed a general intent to equalize his gifts among all the children; but that if George be exempted from payment of interest, then he is to that extent benefited, the other children discriminated against, and the intent defeated ; that is, the general intent to equalize would fail, because a particular intent was assumed, in the absence of any words in the will warranting the assumption.
If the intent to equalize the whole estate be clear, the conclusion ought to follow, for the intent to favor the son by exempting him from payment of interest it may be conceded is not beyond all doubt. But in proportion as the evidence pointing to a particular intent to discriminate makes prominent that intent, that pointing to a general intent to equalize the distribution is of course weakened. As we read this will the evidence of an intent to favor the son decidedly outweighs that
It is argued that the son by payments Avithin the five years gave to the will appellee’s construction of it. In vieAV of the surroundings of the parties and the condition of the estate we think this has but little significance. Robert F. Shannon, the other executor, states that he very often demanded money from George, on the bequest; that money was needed to satisfy a mortgage, and for other purposes directed by the will, and George frequently made payments; he admits, however, that George always denied any liability for interest. Why should not the son and executor, jointly interested in the estate Avith his sisters, do everything in his power to relieve the estate from incumbrances, if he was able to aid it ? If he partly anticipated payment of his OAvn debt at some loss to himself it was not, in view of the circumstances, such improbable conduct as could be construed into an admission of legal liability. It is further argued by appellee, that the agreement by AAdfich the son accepted the business at the appraisement was a construction of the aauII against his present contention. The agreement, it seems to us, is evidence. in his favor. By it he agrees with Shannon, the other executor, that he accepts the property at the appraisement, and will pay for the same “ upon all the terms and conditions allowed by Joseph Fleming, deceased, in his Avill.” Not a word is said about the money being due presently, or within a period less than five years; the word interest is not mentioned in it; but there is a distinct recognition of that period as a controlling one for time of collection of the partnership debts, thus: “ This agreement being made on condition that I (George S. Fleming) am to use all reasonable endeavor to col
The testator by long years of indefatigable toil and assiduous attention had accumulated wealth and built up a large and prosperous business. Like most aged men in similar circumstances he was doubtless desirous of perpetuating, as far as be could do so, this business, and at the same time have the family name connected with it; hence, in addition to paternal affection for his only son, he sought to gratify his family pride, by such favorable provision in his will as would insure the son’s continued success. He in effect bequeathed to him the store and goodwill at a price below their fair value; he then, apparently to guard against impairment of capital, directed that the son should not be compelled to pay within a period of five years; he seeks to protect the son’s possession of the old established business stand by a prohibition against high rent for fifteen years, and that the son should have the first right to become owner of the building at a not excessive valuation. We think, taking the whole will in view of the surroundings, the testator intended to discriminate in favor of his son as to this part of the property; and while there is as to all his other property an intent to equalize distribution among his children, he did not so intend as to this bequest. We are of opinion that the court erred in surcharging him with interest before the expiration of the five years, and the surcharge is directed to be stricken from the account, costs of appeal to be paid by appellee.