113 Pa. 11 | Pa. | 1886
delivered the of the court,
The first question raised on this record is whether or not the executor of the last will and testament of Elizabeth Housel, deceased, is entitled to receive in this distribution the full sum of $300, on her claim for exemption as the widow of John M. Housel, deceased, or $109.24 only, the amount of money on hand at the time the claim of exemption was made.
In Larrison’s Appeal, 12 Casey, 130, it was held that “ property ” within the meaning of this Act embraced money, bonds and other evidences of indebtedness, and that when such property was chosen to be retained, there was no necessity for an appraisement of it. The Act of 8th April, 1859, was, in this respect, declaratory merely of the law as it had previously existed. The widow or children of a decedent may therefore elect to retain three hundred dollars, “ or any part thereof, out of any bank notes, money, stocks, judgments, or other indebtedness” belonging to the decedent’s estate. But when the widow in her claim of exemption has, in her lifetime, specified the particular property which she elected to retain, her legal representatives, in the distribution of the estate, must, we think, be restricted to the designation which she thus made.
John M. Hotisel, the testator, whose estate is now for distribution, died 16th March, 1884. His estate consisted of $109.24 casli, some bonds, mortgages, promissory notes, &c., a small amount of household goods, &c. A few days after the letters were issued Elizabeth Housel notified the executor, in writing, that she claimed three hundred dollars out of the estate of her deceased husband, allowed by law to her as his widow, and stated specifically that she desired that sum to be paid to her “ in cash.” No appraisement was made or taken by the executor, under her claim, indeed it may be conceded, none was necessary. On the 28th May following the widow also died, and the claim is presented by the executor of her last will and testament.
Her claim was for “cash;” $109.24, was all the cash then belonging to the estate, and to this extent onlj", her legal representatives are now entitled, under that claim in this distribution. If her demand had been made after the bonds, notes, or other securities had been realized on, a different question would be presented, but she died before they had been converted to money. She might have claimed her exemption, partly in money and partly in any of the securities, or wholly in the latter; but she did not, and we think the learned court was right in restricting the claim to the cash on hand when the claim was made.
In the last will and testament of John M. Housel, deceased, it is, inter alia, provided as follows: “Item. I give and bequeath to my beloved wife, Elizabeth Housel, all my household furniture or goods during the term of her natural life and direct that no security be required from her for the same; and I also give and bequeath unto my said wife, Elizabeth Housel, (after my just debts and funeral expenses shall have been paid and fully settled by my executor), the one third of my personal estate to her own use and benefit absolutely; the household furniture, however, shall not be included in the appraisement of my personal estate before distribution as aforesaid.”
“ Item. As I hold judgments against my said wife, Elizabeth Housel, which are entered up in the Court of Common Pleas of Northumberland County against the property which I now occupy, it is my will and I so direct that no part of said judgments shall be collected by my executor or heirs from my said wife, Elizabeth Housel, during the term of her natural life, but the same shall be kept revived as a lien against her property aforesaid until after her decease, and after her death the proceeds thereof shall be divided equally among my surviving children and the children of such as are deceased; the said children of such of my children as are deceased to take the share of their respective parent.
It is conceded, that the testator was mistaken as to the nature of the securities he held upon his wife’s property, and that the “judgments ” referred to in the will were in fact the mortgages mentioned. The question is, whether or not, upon a fair construction of the will, the bequest to the widow of the one third of the personal estate to her own use and benefit, in the clause first quoted, was intended to embrace one third of the “judgments,” referred to in the second.
The widow’s claim here is based upon the assumption of a surrender of her right under the intestate law, and her acceptance of the will; she stands upon an equity which is superior even to that of a child; she is not to be treated as a mere volunteer, but as a purchaser, and is therefore entitled to a fair and reasonable construction of the will in her interest: Reed v. Reed, 9 Watts, 263.
. It is true that in the second item he refers to the judgments, (mortgages) he holds against his wife, and directs that no part of these judgments shall be collected from her during her life, but that the same shall by revival be maintained as liens, etc., and that after his decease, the proceeds shall be divided as he directs; but this, as we understand it, does not involve any inconsistency with the clause first quoted. The bequest of one third of the judgments to the widow does not conflict with a provision that they shall not be collected within a given period, whether that be her lifetime, or dhe lifetime of one of his children, or any other period of time.
There is no provision that the widow shall have the benefit of the judgments during her life time; they were not to be collected, but they were to be revived, and the interest thereon to accumulate until her death, and the “proceeds,” that is to sajr, the money arising or obtained therefrom, to be distributed to his children,
A will must be construed so that every clause may take effect, if that be possible. No part will be rejected as repugnant, if any fair and reasonable construction can be given to the whole, which will render every part effective: Nathans v. Morris, 4 Wharton, 389; Mutter’s Estate, 38 Pa. St., 314; Seibert v. Wise, 70 Pa. St., 147. But even if the direction in this second clause of the will may be considered ambiguous or of doubtful meaning, which we do not think it is, it must be construed in subordination to the original bequest, .the terms of which are clear, and unequivocal: Sheets’ Appeal, 82 Pa. St., 213.
By every rule of construction, we think, this will should be read as giving to the widow her full share of the personalty. The testator clearly contemplated an appraisement of his entire estate, except as specifically provided, and a distribution upon the basis of that appraisment; one third to the widow, of the appraised value. He explicitly directs what shall be omitted from tills appraisement, and, distribution, to wit, ids gold watch, and his household furniture; if he had intended to exclude the mortgages, it is reasonable to suppose ho would have said so.
It was suggested at the argument, that the question of interest, had been reserved, to be disposed of in the future. We infer from this, that there may be matters bearing upon the question of the widow’s responsibility for interest, or upon the extent of that responsibility, of which we are not informed; we will not therefore attempt a distribution upon the basis of this opinion, but will remit the record, in order that this may be done in the court below.
The decree of the Orphans’ Court is reversed; and it is ordered that the record be remitted, in order that distribution may be made in accordance with this opinion ; and it is ordered that the appellees pay the costs of this appeal.
