Fetrow's Estate

| Pa. | May 14, 1868

The opinion of the court was delivered, May 14th 1868, by

Sharswood, J.

We have before us a very inartificially-drawn will, from which we are to gather the intention of the testator as far as it can be from the four corners of the instrument itself. It often happens that an unskilful scrivener, who uses technical words and legal phrases, creates more difficulty than would the unlearned testator himself had he employed his own simple language to express his meaning.

The first gift is that out of which this contest has arisen, It gives to Matilda Wilson during her natural life feveral pieces of real estate, and at her death to her children, their heirs and assigns for ever. “ Should the said Matilda Wilson, however, die without issue, as aforesaid, then, in that event, I direct that the real estate herein bequeathed shall be sold, and the proceeds thereof I direct shall be equally divided amongst the other devisees named in this my last will, or their legal representatives.” Matilda Wilson died without children. The real estate thus given to her has been sold, and the question in the court below and now here, is as to the distribution of the proceeds.

Matilda Wilson under the will took an estate for life, with a contingent remainder to her children then unborn, which, if there had been children, would have vested in them, in the first child alone, and opening from time to time to let in others as they were born, until the whole class became finally ascertained by her death: 1 Fearne on Rem. 313, 314. The subsequent limitation was an alternative one, to take effect on the event of her death without children: Luddington v. Kime, 1 Lord Raym. 203; for the words “ die without issue as aforesaid” can have no other meaning. It has been suggested, indeed, that the testator intended to confine the death of Matilda without children to his own lifetime, and that his only object was to provide for a lapse. The consequence would be that as Matilda survived the testator the alternative limitation or direction to sell and divide the proceeds would fall, and the testator die intestate as to this portion of his property. There is nothing, however, in the words or context to sustain such a construction. The testator sets out with a declared intention to dispose of all his worldly estate, and the general presumption is against a partial intestacy. The question indeed is not properly involved in this case: for the fund having been raised by the exercise of the power, we have nothing to do with any other question than the distribution of it. A learned and able argument, however, has been addressed to us by counsel who has appeared on behalf of the heirs at law, and it is but respectful to him to notice the point.

Who are the devisees named in the will, among whom the testator has directed these proceeds to be equally divided ? It is contended that he used the word “ devisees” in its legal sense as those to whom real estate was given. In propriety of language the word “ devise” means a testamentary disposition of land, while “legacy” or “bequest” are words appropriated to such dispositions of personalty. It is certainly an established canon of construction that in doubtful cases it is safest to adhere to the technical meaning of words on the primary presumption that the testator used them in that sense: Still v. Spear, 9 Wright 168. But this rule, like all others, must give way where it clearly appears that he understood and used them in a more popular sense. It is apparent that such was the case in this will. There are eleven items before the residuary clause. In nine of them he applies the words “ give, devise and bequeath” without discrimination to dispositions of realty and personalty. When he comes to dispose of his “ stock and personal property” he directs it to “be equally divided among the foregoing named devisees,” and then proceeds to designate them by name, including in the list five persons or classes of persons, who were mere legatees of money. In view of so clear an indication of his understanding of the word “devisees,” we must reject the construction which confines the distribution of this fund to those only to whom land is devised.

The construction on the other hand which appears to have been adopted by the auditor and confirmed by the court below, seems to us, as near as may be, to carry into effect the intention of the testator. It compares the specific bequests and devises in the will with his own enumeration of devisees in the residuary clause, and thence draws the inference that he had arranged the objects of his bounty in classes. He meant primarily by “ the other devisees named or their legal representatives,” those to whom he had made devises or bequests directly by name, whether for life or in remainder, and intended to include the “heirs or children” with their parents in the shares given to them. This would be plain enough, if it stood upon the items of the will without the enumeration contained in the residuary clause. When he divided by that his personal property among “ the foregoing named devisees,” he certainly did not mean all, for he has not given to Michael Fetrow a separate share, and has omitted his sister Elizabeth Borland altogether. I incline to think that the residuary clause should be construed as if it had been written “ to the following of my foregoing named devisees”; and that the direction as to the fund in question should be restricted to the devisees named in the' will irrespective of the list there given. The testator had his specific legatees and devisees in his mind, and not the disposition he intended to make of the residue. This removes the residuary clause entirely as a disturbing element in the construction.

Appeal dismissed and decree affirmed, at the costs of the appellants.