87 Pa. 196 | Pa. | 1878
delivered the opinion of the court,
The money, in regard to which this contention arises, was decreed to the appellant as her share of the residuary estate of George Romberger, under his last will and testament. The only question is, whether she shall be required to give security for its payment over to her brothers and sisters on her death without child or children ?'
The will of Romberger, to which we are asked to give construction, was written by himself. His imperfect knowledge of the' English language, and his ignorance of orthography, have united in producing an instrument not entirely clear in its provisions. Putting the clauses, relating to the appellant, into intelligent language, we understand him to give to her a specific legacy of $2300, but to declare that “if she should die without heirs or children, then the half of all she had or will get out of my estate, must be paid back to my other seven children, share and share alike.” After making several subsequent devises and bequests, he directed a sale to be
No question is now made as to the specific legacy. That appears to have been settled in some manner satisfactory to all parties. The case is therefore restricted to deciding under what conditions she takes a share of the residuary estate.
Although the language of the will is “heirs or children,” yet it is very clear the testator did not use the word “heirs” in its general legal sense, for all of her seven brothers and sisters to whom he directed the money to be paid, were her lawful heirs. He used it as synonymous with children. She wras childless. Her remaining in that condition, was the thought in his mind. It dictated his language. He was giving her personal estate. Pie intended to qualify its distribution in the contingency of her dying without leaving a child or children. No rule of law prevents effect being given to his clear intention.
It is evident that he had in his mind not only her specific legacy, but all the estate she might take under his will. Although the qualifying clause followed soon after the giving of the specific legacy, which he may have thought she “had” gotten, yet when he added “or will get out of my estate,” he would appear to have had in view the residuary clause which he added. To now exclude the residuary share .would prevent the will from covering “all she had or will get” out of his estate. It would defeat the main purpose of the will. Such a construction would be contrary to its letter and its spirit. To include the residuary estate is within the whole scheme of the will: Middleswarth v. Blackmore et al., 24 P. F. Smith 414; Schott’s Estate, 28 Id. 40. This contingent qualification did not extend to the whole estate bequeathed to the appellant, but to the one-half only. The learned judge erred in requiring security to be given for the payment of the whole sum, and for that reason the decree must be reversed.
Decree. — This cause came on for hearing on the appeal of Hannah Koppenhaffer, from the decree of the Orphans’ Court of Dauphin county, and was argued by counsel, and thereupon, on consideration thereof, it is adjudged and decreed that the decree of the said Orphans’ Court in the premises be reversed and set aside. It is further ordered and decreed, that one-half of the money in court be paid to said Hannah unconditionally, and that the other half thereof be paid to her on her giving security that the same will be paid over to her seven brothers and sisters, on her death without child or children, she to receive the interest thereon during her lifetime for her own use. It is further ordered that the appellant and the appellees shall each pa.y one-half of the costs of this appeal.