182 Pa. 355 | Pa. | 1897
Opinion by
George J. Pittman died September 17,1891, leaving a widow, but no children. He left an estate, consisting largely of land, part being a valuable improved farm of one hundred and thirty-five acres. Of this, he devised a particularly described field of twenty acres to an adopted daughter, Olive D. Pittman; another field, of thirty acres, particularly described, to his nephew, Thomas Johnston, this last, subject to the payment of $500 to a niece, Pleasant E. Mann; to his wife, Elizabeth, he devised and bequeathed the balance of the land and estate, subject to the payment of $150 to his adopted daughter, Olive D. Pittman, she, Olive, however, to pay the collateral inheritance tax on the field before devised to her. By a codicil, instead of an absolute estate in the balance, he gave to his wife the use thereof during life, with authority to sell, convey and dispose of the same, and use the proceeds if she thought necessary; if anything remained at her death, then it was to go to certain nephews and nieces in particular allotments.
Thomas Johnston accepted the devise of the field, paid the
The testator, some years before his death, had incuri’ed a liability as surety on an administration bond in a considerable amount; though the bond was in suit at his death, it appears he expected the defense set up would be successful, therefore, he seems not to have had in mind any depletion of his estate on account of this liability, or any other, and made no provision for payment of debts in his will. However, after his death, 'the event of the suit on the bond fixed his indebtedness in this particular at $2,004.49, which with counsel fees, funeral expenses, and a few other items, made the entire debts for which the estate was answerable, $S,064.49. In addition to the land, there was some personal property, which was taken by the widow, the value of which is in dispute, but it was stated by the counsel in argument before us, as worth about $600, and for the purpose of ending strife, we adopt that valuation in making up our decree. Under these circumstances, application was made -by the widow and executrix to the orphans’ court for an order of sale to pa3>- debts, with a request that the court direct in what order the land should be sold; she, contending, that as widow, the land devised to her should be last resorted to. The two other devisees contended that theirs were specific devises, and the widow’s a rpsiduary one, therefore, under the law, the latter must be first subject to payment of the debts. The court below, was of opinion that the devise to the widow was residuary, having no semblance of a specific devise, and, therefore, must be first appropriated inpa3unent of the unanticipated indebtedness.
Without citing the many cases on the question, the reasons for the judgments in them not always being in harmon3, one rule, in substance, is announced in all of them; as summarized by Lowrie, J., in McGlaughlin v. McGlaughlin, 24 Pa. 20, it is this: “ On a question of marshalling assets under a will, the residuary clauses necessarily furnish the most important evidence of the intention of the testator, because they dispose of the surplus that remains after satisfying all the other directions of the will. On this account it is very natural to presume that the testator intends to charge upon them all the deficiencies in the other portions of his estate in paying debts and legacies;
The remarks of Woodward, C. J., in Gallagher’s Appeal, 48 Pa. 121, in discussing the question, as to whether a legacy should be charged on a residuary devise, points out the difficulty in a case like the one before us: “ When does a testator make the pecuniary legacies a charge upon the land devised ? It would be easy to answer when he manifests an intention to do so by express language. But it often happens that there is no express charge, and language which the testator directed to other objects has to be so construed as'to get at his presumed intention upon this particular point.”
What was the intent of this testator ? If it was that his wife was to have only what remained after the two legacies to his nephew and adopted daughter and his debts were paid, then the property devised to the wife must be first sold. It will be noticed that neither in the will nor in the codicil does he speak of debts, and, as it is admitted that the obligation of suretyship, with the expenses incident to a defense against it, with a trifling exception, constitute his whole indebtedness, it is not probable that the testator considered the matter as of sufficient gravity to warrant a direction concerning debts. The principal part of his estate consisted of his 185 acre farm, and he disposes of this first, by giving a particular field of twenty acres to his adopted daughter, then a particular field of thirty acres to his nephew, imposing upon that a specific charge of $500. This left eighty-five acres of the farm and his personalty; he then says : “ I give and bequeath to my beloved wife, Elizabeth, her heirs and assigns forever, the balance of all my property, real, personal and mixed, of what nature or kind soever, and wheresoever the same shall be at my death, subject, however, to the payment of one hundred and fifty dollars to my adopted daughter, Olive D. Pittman, before mentioned.”
It is wholly immaterial that he commences by giving the
The argument that the widow having accepted the devise, it must be considered as in lieu of dower, therefore she must be treated as a purchaser for a valuable consideration, is not sustained by the facts under this will; as pertinently said in the opinion of the court below: “ She must certainly accept her devise subject to all the limitations and conditions imposed upon it by the testator, either by express words or necessary implication.” Here, by express words, all three were specific devises, and, by necessary implication, all are answerable for the indebtedness. In equity, all three should contribute pro rata according to value towards payment of the unexpected indebtedness.
The learned judge of the court below has found from the evidence the value of the devises as follows :
Olive D. Pittman, ......$ 800.00
Thomas Johnston, ..... 1,275.00
Elizabeth Pittman, $5,500, to which we add admitted value of personal property, $600, making, . ......6,100.00
$8,175.00
Total of debts, $3,064.49.
To pay this would require a pro rata distribution from each devisee of 37.486 per cent on the value of each devise, making for
Elizabeth Pittman, ..... $2,286,646
Olive D. Pittman, ..... 299.888
Thomas Johnston,...... 477.946
$3,064.48
Each amount should bear interest from June 9,1896, the date of final decree in the court below.
It is therefore ordered that the decree of the court below be reversed, and it is further decreed by this court, that the property of each legatee be subject to the payment of the heretofore specified pro rata amounts respectively, and each is directed to pay the same to the executrix, to be applied in payment of the
As this litigation arises from an uncertainty of legal right occasioned by the language of the will itself it is but just that the costs of this appeal should be borne equally. It is therefore ordered that each devisee pay one third of same.