106 Pa. 184 | Pa. | 1884
delivered the opinion of the court,
The testator devised all his real estate, except lot Ho. 1012, Palmer street, to Mary Y. Eyre, charged with the payment of all mortgages or other incumbrances which at the time of his decease should be upon the premises conveyed by Lydia Eyre to Edward W. Gorgas, in trust, for uses therein mentioned, which uses were changed by Jehu W. Eyre by deed to said Gorgas, dated July 20, 1865. He gave the income and rents of said lot, Ho. 1012, to said Mary during her life, if she should remain unmarried, and clothed her with power to sell the lot and apply so much of the purchase money as necessary to discharge the mortgages, or other incumbrances, on the trust premises described in said deeds, and obligated her to invest the residue, if any, in reliable security; she to receive and enjoy the interest of the money so invested during life, or until her marriage. She is not bound to sell the lot unless she should marry, in which event, as executrix, she must sell, that distribution may be made of the proceeds. It rests in her own discretion, while unmarried, whether to sell the lot within her lifetime, and if she sells she may invest the whole of the purchase money and enjoy the interest or income thereof during life should she choose to do so — the power' to apply it in discharge of the mortgages is unaccompanied by the duty. But after her marriage or death the lot shall be sold, if not already sold, and enough of the proceeds of sale shall be taken to pay the mortgages and incumbrances charged upon the real estate devised to her in fee. The testator contemplated that the lot would sell for enough, or more
The deed by Jehu W. Eyre to Gorgas, dated July 20,1865, declares that after the death of said Eyre, all the trust estate which had been conveyed to Gorgas, should be for the use of Mary Y. Eyre during life, if she remained unmarried, with power in Gorgas, said Mary consenting, to sell real estate and re-invest the proceeds, or use the proceeds to pay mortgages or other incumbrances ; also to raise money by mortgage to pay any or all mortgages or other incumbrances on the said premises. And upon the decease of both said Jehu and said Mary, or upon the marriage of said Mary, Gorgas shall sell the whole of the real estate, and the moneys arising from such sale, after paying and discharging all the mortgages and other incumbrances on the said premises, shall be distributed to certain persons designated in the deed.
Eight days after the execution of the deed the will was executed. They cannot be read as one instrument in all respects. The directions in the deed for payment of the mortgages on the trust estate are superseded by the directions in the will. Other property is charged with the payment, and nothing in the will directs that the charge shall remain without enforcement of payment until the marriage or death of Mary Y. Eyre. By accepting the devise she took it with its burden. The will obligates her to pay the mortgages in ease of the trust property — -the deed authorized her to suffer the incumbrances to stand while she lives and, if necessaiy, to create new ones for the purpose of discharging the old. The deed provided that at last the mortgages should be paid out of the trust estate — the will charges the payment upon other property. Both provisions cannot stand, and the last is the law for the parties. The will took effect upon the decease of the testator, and his own interest and power in and over the trust property by the provisions of the deed, indicate a reason for making the change respecting the payment of the mortgages by his will instead of by deed.
It was contended on the part of the appellees that the testator referred to the deed dated March 9,1865, to Anna M. Heller, for a lot in fee, and that the charge was intended to be in ease of that lot for the benefit of the grantee. But in that deed he only revoked the uses and trusts as to the lot therein conveyed, being part of the larger premises described in the deed of March 7, 1889, and declared express intention not to affect, alter or revoke the uses so far as they related to the remaining part of said larger premises. Therefore the uses and trusts created by the deed of March 7, 1839, continued in
The deed, defines the persons for whose use the property is held, and they are the beneficiaries of the provision in the will that the mortgages and incumbrances upon the property described in the deed shall be paid out of other property. That provision is the same in effect as a bequest of so much money to those persons. They derive their interest in the charge upon real estate for payment of the mortgages, from the will alone. That it is necessary for them to produce the deed with other evidence to establish that they are the persons entitled as the legatees, is no reason for saying that their interest in the bequest is derived from the deed. True, they are the equitable owners of the estate described in the deed, the charge created by the will is in ease of that estate, and payment of the incumbrances as provided by the will discharges that estate forever: but it is as direct benefit to the owners as if the money were given to them to pay the incumbrances.
The mortgagees are not urging payment. Had no considerable time elapsed, and no sales made of the land charged with the payment, the court might well refuse immediate action, on the ground that delay for a reasonable time would be little if any prejudice to the petitioners, and that immediate payment was not contemplated by the testator. The petition was not filed until seventeen years after his death, nor until after the devisee had sold a number of lots for more money than is required to satisfy the charges thereon. The answers of the several purchasers show no desire for delay on their part. It is said in the opinion of the Orphans’ Court, that “ one of the tracts was sold under judicial process by which the lien of the mortgages was lost; but the only result was to shift the remedy of the petitioners from the land to the proceeds.” This fact indicates the possibility of loss, the probabilit]'- of costs and expenses, by the petitioners, if they are denied relief. There is no reason for subjecting them to the watching for judicial sales of parcels of the land sold by the devisee, and to contests for the proceeds, in order to protect their interest under the will. Sales having been made by the devisee for sums in the aggregate several thousand dollars in excess of the charge, she has no reason for demanding further time.
It is conceded by the parties that jurisdiction for enforcing payment of a testamentary charge on real estate is exclusively in the Orphans’ Court. The statute authorizes that court to “proceed according to equity to make such decree or order touching the payment of the legacy out of such real estate as
The decree dismissing the petition is reversed, at the costs of tile appellee, Mary Y. Eyre, and record remitted for further proceeding.
