155 A. 875 | Pa. | 1931
On May 10, 1863, George R. Harmstad died seized of certain real estate situate in Philadelphia. His will, dated January 11, 1859, was duly probated. The final remainder under that will, by adjudication of the Orphans' Court of Philadelphia County was on March 12, 1929, declared invalid for violation of the rule against perpetuities. As a result it was held that title to certain real estate of which Harmstad died seized was vested from 1863 in Harmstad's heirs at law. Harmstad was survived by four brothers and one sister, each of whom took a one-fifth interest in the real estate in question. One of these brothers, Edwin Harmstad, died in 1887, leaving a will dated March 9, 1880, duly probated in 1887. Under it the sole beneficiaries were his foster daughter, Mary G. Kingsley, and her children, Mary G. Kingsley, Jr., and William H. Kingsley. The question before us is whether the terms of the will of Edwin Harmstad were effectual to dispose of an interest to him then unknown which he had in his brother's estate. It was not determined that he had an interest until forty-two years after his death. Mary G. Kingsley, the foster daughter of Edwin Harmstad, died intestate and a widow on March 28, 1926. Her son, William H. Kingsley, the appellant, survived her as her only heir at law.
On May 9, 1929, Annie D. Fleck filed a bill in equity in partition, averring that she and certain of the defendants named in the bill owned the realty which is the subject of this controversy, as tenants in common, and asking for a partition. By agreement, this proceeding *306 was discontinued and a new bill in equity was filed in the same court, term and number on August 5, 1930. William H. Kingsley was made a defendant in this proceeding, but it was averred in the bill that he had no interest in the property. Kingsley filed an answer to the bill, and after argument the court below entered a decree that Edwin Harmstad died intestate as to the real estate concerned in the proceedings and that William H. Kingsley had no interest in the real estate.
The third paragraph of the will of Edwin Harmstad reads as follows: "I give and bequeath all my Household goods, wearing apparel and Jewelry c unto my friend Mary G. Kingsley wife of the late William Kingsley of the said City of Philadelphia Restaurateur." The appellant claims that this provision was sufficient to vest in Mary G. Kingsley, the appellant's mother, the interest in the real estate which the testator at that time did not know he owned, but which by the adjudication of 1929 was held to have vested in him sixty-six years previously.
A discussion of the intention of the testator, Edwin Harmstad, with respect to the real estate in question avails us nothing, for Harmstad was entirely without knowledge at the time he made his will and at all times thereafter that he had any interest in this real estate. One cannot have any intention toward a thing of whose existence he is unaware. The fundamental question before us is whether the will contains sufficient words to pass the real estate in question. The will contained no general residuary clause, and paragraph three of the will cannot be construed as such.
In Swan's Est.,
In Thompson's Est.,
"Bequeath" is properly applied to gifts by will of personal property, and not realty: Logan v. Logan, 17 P. 99; Delafield v. Barlow,
The term "devise" is the proper term to be used in a will to denote a gift of real property, although it has sometimes been construed as sufficient to pass personal property: Oothout v. Rogers, 15 N.Y. Supp. 120, 122.
It is true that the word "devise" is sometimes used in a will interchangeably with "bequeath," and a departure from the precise use of these terms will not invalidate either the bequest or the devise, and no particular words are necessary to constitute a devise of real estate (Com. v. Hackett,
In order to sustain the appellant's contention, we would have to hold that the symbol "c" in paragraph three was sufficiently comprehensive to embrace the real estate. Appellant argues that in Pennsylvania residuary clauses expressly mentioning only personalty have been held to include real estate, and he cites Swentzell's Est.,
Appellant also cites Talbot v. Anderson,
Ostrom v. Datz,
Appellant also cites Jacobs's Est.,
The appellant asks us to go beyond these cases and construe in a testamentary clause which is not residuary the symbol "c" as inclusive of real estate exactly as the words "money" and "personal property" have been judicially construed as including real estate. This we cannot do. The word "money" is popularly and correctly used as indicating property of every description, whereas the symbol "c" is invariably used as indicating things of like character with the things enumerated just before it.
The character "etc." means "others of the like kind; and the rest; and so on": Lathers v. Keogh (N.Y.), 39 Hun. 576, 579. "Etc.," as used in a pleading alleging damages to furniture, etc., was held to be meaningless: Whitmore v. Bowman (Iowa), 4 G. Greene 148, 149. "Etc." is equivalent to saying, "and others," which is not a specific designation of anything; and an appropriation for certain described objects, etc., is not a specific *310
appropriation within the Constitution: State v. Wallichs, 11 N.W. 321. "Etc." imports other purposes of a like character to those which have been named: In re Schouler,
In Webster's International Dictionary, "etc." is defined as: "And others (of the like kind); and the rest; and so on; and so forth; — used to point out that other things which could be mentioned are to be understood."
The term "etc." is defined in the Century Dictionary as: "And others; and so forth; and so on; generally used when a number of individuals of a class have been specified to indicate that more of the same sort might have been mentioned, but for shortness are omitted." See also Bagley v. Rose Hill Sugar Co., 35 So. 539, 548.
The words "et cetera" mean "and others" or "and other things of the like character": Doty v. Am. T. T. Co., 130 S.W. 1053; Louisville N. R. Co. v. Sewell, 134 S.W. 162, 164.
A set of scales and a quantity of rock salt are not covered by a pledge of "iron, junk, hides, etc.," the "etc." being held only to refer to property of the same general character as "iron, junk and hides": Morganstein v. Commercial Nat. Bank of Chatsworth,
Appellant cites Chapman v. Chapman, L. R. 4 Ch. Div. 800, where a testator directed his freehold estate to be sold, and his debts to be paid by his widow, his sole executrix, and then bequeathed to her "all my money, cattle, farming implements, etc., she paying [the] sum of. . . . . ." It was held that the widow was entitled to the whole of the testator's property, including realty, *311
after the payment of debts and expenses. It should be observed that the word "etc." in that bequest follows the word "money" as well as the words "cattle" and "farming implements." As we said in Williamson's Est.,
In Barnaby v. Tassell, L. R. 11 Eq. 363 (1870), the testator bequeathed "all my furniture, c., with my six freehold houses" to his wife for life. He possessed at the time of his death some water works shares. In this case Sir JAMES BACON, V. C., said: "Upon the first point, that the expression 'c' refers only to property ejusdem generis, and does not carry the water works shares, _____ I have no doubt whatever."
Real estate is entirely too heavy a load to be carried by a bequest of the symbol "c" following the enumeration of household goods, wearing apparel and jewelry. The testator, Edwin Harmstad, died intestate as to the *312 real estate in controversy, and William H. Kingsley acquired no interest in it.
The decree of the court below is affirmed at the cost of appellant.