Estate of Sharp, Appeal, No. 9

Appeal, No. 9 | Pa. Super. Ct. | Apr 25, 1898

Opinion by

Orlady, J.,

A legacy may be charged on land by implication. No form of words is necessary to produce the effect, and when the intention is manifest, courts are bound to carry it into execution. Such was decided in Ripple v. Ripple, 1 Rawle, 386" court="Pa." date_filed="1829-06-15" href="https://app.midpage.ai/document/ripple-v-ripple-6314315?utm_source=webapp" opinion_id="6314315">1 Rawle, 386, and is followed in Gilbert’s Appeal, 85 Pa. 347" court="Pa." date_filed="1877-10-26" href="https://app.midpage.ai/document/gilberts-appeal-6235646?utm_source=webapp" opinion_id="6235646">85 Pa. 347 in which it is said: “ 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.” Both statements of the principle are adopted by Judge Fell in Dickerman v. Eddinger, 168 Pa. 240" court="Pa." date_filed="1895-05-20" href="https://app.midpage.ai/document/dickerman-v-eddinger-6242975?utm_source=webapp" opinion_id="6242975">168 Pa. 240, in disposing of the question whether an annuity was a charge upon real estate.

Edward Sharp executed his last will November 2, 1888, and died twelve days afterwards, leaving to survive him five daughters and a widow, who was his second wife.

All of these persons are remembered in his will by his giving to each of three daughters one dollar each, to the fourth he gives “ the use of one third of my farm during her natural life, and after her death to her issue in fee simple, share and share alike.” And for the fifth daughter, he provides, “ I give and bequeath to my son-in-law, William Sharp, the use of two thirds of my farm, .... during his natural life, and it is provided that in ease my daughter, Ellen Sharp, survive her said husband William Sharp, she the said Ellen Sharp is to have the use of two thirds of the farm enjoyed by my son-in-law, William Sharp, during his natural life; the said two thirds of the farm to be that portion not herein devised to my daughter Cassie Cowley. Subject to the two life estates of the said two thirds, of my farm in William Sharp, and my daughter Ellen Sharp, I devise the said two thirds of my said farm to the issue of Ellen Sharp in fee simple share and share alike.”

The sixth paragraph is as follows : “ I direct that William Sharp pay to my wife Antone Sharp, the sum of thirty dollars per year as long as they both shall live, and in case Ellen Sharp' outlive her husband William, then and in that case Ellen Sharp shall pay to Antone Sharp the sum of thirty dollars per year as long as Antone Sharp shall live, provided that all of aforesaid payments of any sum or sums by William Sharp or Ellen Sharp to Antone Sharp shall cease in case Antone Sharp again remarry. And it is farther provided that Cassie Cowley shall pay to the said Antone Sharp the sum of fifteen dollars annually so long as Antone Sharp shall live and remain the widow of the testator but as soon as she shall again remarry the said payment shall cease and determine.”

By the seventh paragraph he gives to his wife Antone the use of his real property in the borough of Dushore as long as she remains luis widow, after which it is to be equally divided among his issue share and share alike; and by the eighth paragraph, he devises the residue of the personal estate to his daughter Ellen Sharp.

Antone Sharp remained the widow of the testator four years and six months without receiving anything from Mrs. Cowley or William Sharp on account of the legacies provided for her.

The farm devised was sold by order .of the orphans’ court for the payment of decedent’s debts, and there remained for distribution seven hundred and sixty-two dollars, of which two hundred and sixteen dollars and thirty cents was distributed to Antone Sharp, now Broschart, as the amount of her legacy which was held to be charged on the land.

It was tbe evident intention of the testator to secure the sum of forty-five dollars annually for his widow, and the manner in which he apportioned the amount between his daughters to correspond to the share of the farm devised to each, and continuing the liability beyond the life of William Sharp, shows a clear intention to create a charge upon the land devised and to substitute this annual amount during widowhood for her dower right, if she would accept the provisions of the will.

He had' in his mind at the time of making his will all the persons who would be interested in his estate had he died in-, testate, and he intended to secure to each what is specially devised, so that to pass the whole of his estate to his daughters, without payment of legacy or dower to the widow would be doing violence to his intentions as gathered from his will.

The first assignment of error was not pressed and the others are overruled.

The judgment is affirmed.