France's Estate, 75 Pa. 220

France's Estate

75 Pa. 220 | Pa. | 1874

The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

These two appeals were argued together. They are both from the same decree. The important question is, what interest did Jane France take, under the will of her husband, in his real estate ? Its language is this: “ Item, I give and bequeath to my beloved wife Jane, one-third of all my personal property, and one-third part of all the income, rents, and use of my real estate.”

“ Item. I do give and bequeath unto my son, William France, all the residue and nemainder of my estate, real and personal.”

Nesbit, a second husband of Jane, and who survives her, claims *224she took an estate in fee, in one-third of the real estate. It is well settled as a general rule of law, that a devise of the rents, issues and profits of land, is equivalent to a devise of the land itself. It cannot, therefore, be denied, even if the actual intent of the testator was otherwise, that in law, she took the land itself, for such a length of time, as he thereby gave her “ the income, rents and use ” of the property.

This brings us to the consideration of another question, to wit: did the whole estate of the testator pass to her, or only a life estate ? The devise contains no words of inheritance. It has, however, often been held substantially, and is expressly declared by the 9th section of the Act of 8th April 1833, Purd. Dig. 1475, pi. 10, that “ all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.”

Does it then appear in this will “ by a devise over or otherwise,” that the testator intended to devise a less estate to Jane ? The intention is to be gathered from the whole will. If any of the clauses therein are repugnant to each other, effect must be given to the last. Looking first at the particular clause in question, we discover that the language does not in express words give to her one-third of all his real and personal property, but “ one-third of all his personal property, and one-third part of all the income, rents, and use ” of his real estate. While, as we have shown, this language is sufficient in law to pass the land itself for such a length of time as she was given “the income, rents and use ” thereof; yet we are not thereby precluded from considering that language in seeking to ascertain the duration of the estate given.

It cannot be denied that the intent to dispose of land is not usually manifested by disposing of “the income, rents and use” only, thereof. We also see that the devise to her was of an undivided interest in both the real and personal estate. It therefore left to be disposed of the residue of each kind of property, and, if she took a life interest only in the land, a “ remainder ” therein. Passing then to a consideration of the devise to his son William, we discover, to him was given “all the residue and remainder ” of testator’s estate, real and personal. If the estate to his wife had been expressly limited to her life, no more apt or expressive language could have been used by the testator in devising it over to his son. By “residue” he gave to his son all of his property in which he gave his wife no right, and by “ remainder ” he gave him any interest in land which remained after the termination of the estate given to his wife. The word “ remainder ” is the correct legal language to pass the land after the expiration of a life estate therein. If it be urged that this is giving a too technical meaning *225to the words, I answer, when it is applied to an estate in land, the law has given that technical meaning to it. It is a settled rule of construction that a technical meaning shall be given to a technical word in a will, unless there is clear evidence of a contrary intention. I may add, that it is by construction only of law, that the words used could give the widow the land itself in fee. Giving the construction asked for her, prevents due effect being given to the later clause, devising the land to the son. By holding then that the wife took a life estate only, as we do, it gives effect to the latter clause, and does no violence to any part of the will. It gives effect to every word and harmonizes the whole instrument. Besides, if the construction were doubtful, the la,w leans in favor of a distribution as conformably to the general rules of inheritance as possible: Amelia Smith’s Appeal, 11 Harris 9. The view we have taken effectuates that result. We therefore think the learned judge erred in decreeing that any portion of the proceeds of the real estate, or of the interest therein, should be paid to James Nesbitt, and the several errors assigned by France are sustained.

The first error assigned by Nesbit relates to the disallowance of the claim presented by him as administrator of his wife Jane, formerly Jane France. The claim is for money paid by the widow of Abraham France for four items. The first for medical attendance on her husband, and the last for a tombstone, were properly disallowed. We see no reason why the widow should volunteer to pay those claims, and demand tobe repaid by the executor. With equal propriety she might pay any debt owed by her late husband, or contracted by the executor in the settlement of the estate, and collect the amount from the executor. It would be an interference with the powers and duties of the executor that the law will not tolerate. She, in that respect, would have no more 'right than a stranger to create herself a creditor of the estate.

The second and third items, wre think, rest upon different grounds. They both relate to expenses attending the husband’s funeral. It is true, the executor, by virtue of his trust, was charged with the burial of the testator, yet wills are generally, and I think, very properly, not read, nor the contents communicated to the executor, until the funeral obsequies are ended. The necessary rites of humanity require prompt action. The widow and family of the deceased occupy a position most convenient to discharge those duties. When they do properly discharge them, and incur and pay the necessary expenses, without objection on the part of the executor, his assent must be presumed, and the estate be held liable for the amount paid. Nor does the fact that the widow said to a stranger, she did not intend any one else to pay the expenses, and that she did it voluntarily out of respect to her husband, constitute any bar to her right to recover them. Moreover, the auditor has found that the executor of Abraham *226France “never filed an inventory of the goods, chattels, and credits of the decedent, nor did he ever cause an appraisement of the personal estate to be made.” Hence, the omission by the executor to discharge his duties, made the action of the widow the more necessary. There is no evidence that the amount paid by the widow was unreasonable or unnecessary. The sum, therefore, paid for grave clothes, and to the undertaker, amounting to $134.18, should have been allowed.

We see no error in disallowing the claim for three hundred dollars. This sum is given to a widow, if she claims it at a proper time. The law does not force it upon her. It is a right that she may waive. In this case she never claimed it. She lived more than six years after the death of her husband. The right then died with her, and her executor cannot now demand it. The second assignment is not sustained.

Decree reversed. And now, May 11th 1874, it is ordered and decreed that the. fund be distributed as follows, to wit: to James Nesbit, administrator of Jane Nesbit, out of the personal estate, $203.66; to William France, the residue of the personal estate, and the whole proceeds of the real estate, $2594.58; and that the costs of each appeal be paid by the appellee therein.