Grim's Appeal

89 Pa. 333 | Pa. | 1879

Mr. Justice Mercur

delivered the opinion of'the court, May 7th 1879.

This contention is between a devisee and a legatee under the will of Abraham Grim, of whom they are sons and heirs. The testator devised to the appellee the whole of his real estate charged with the payment of $5500, the interest on $1000 thereof to be paid to his widow while she continued such, and the residue to be equally divided among his other five children, of whom the appellant is one. It is found as a fact that the real estate was of the value of $6600. Such being the case it indicates that the testator intended an equal distribution of his estate among all his children. The intention is further evinced by the fact that the appellee is the first ■ taker under the will, and is therefore presumed to be the favorite of the testator: McFarland’s Appeal, 1 Wright 300 ; Wilson v. McKeehan, 3 P. F. Smith 79. Still further, where the meaning of a devise is uncertain the law will adhere as closely as possible to the general rules of inheritance, and whoever claims against the laws of descent must show a satisfactory written title: Lipman’s Appeal, 6 Casey 180; Amelia Smith’s Appeal, 11 Harris 9; France’s Appeal, 25 P. F. Smith 220. There is no reason to infer that the testator intended to give the appellee less than he gave to each of his other children. He made no disposition' of his personal estate, and it was found insufficient to pay his debts. The main question therefore is, whether the legacies shall abate pro rata to pay the residue of the debts of the testator ? The court below held they should and decreed accordingly. This is assigned for error.

It may be conceded, under the English authorities, that demonstrative legacies, or specific bequests of personalty, payable out of a particular fund, set apart for that purpose, will abate only as against each other in case of a deficiency of assets for the payment of simple contract debts; and also that, some of the earlier decisions of this court appear to have assumed that to be the correct rule. In later cases, however, this court has given a reason for modifying the rule which prevails in England,'resting, in my opinion, on substantial ground. There lands are not, as here, regarded as general assets for the payment of debts. Hence it was reasonably inferred that an intention existed there, as against simple contract debts, to prefer specific devises over specific legacies. In this state, however, lands have always been assets for the payment of debts whether by/ simple contract or otherwise. Hence now specific or demonstrative legacies shall not alone be liable to abate; but on a deficiency of personal assets to pay debts, devises are equally liable to abate : Loomis’s Appeal, 10 Barr 387; Teas’s Appeal, 11 Harris 223 ; Armstrong’s Appeal, 13 P. F. Smith 312 ; Knecht’s Appeal, 21 Id. 333; Snyder’s Appeal, 25, Id. 191. It therefore follows, under the established facts, that the legacy of the appellant was liable to abatement pro rata. It is unnecessary to consider the other assignments. We discover no error.

Decree affirmed, and appellee dismissed at the costs of the appellant.