Lefevre's Estate

171 Pa. 404 | Pa. | 1895

Opinion by

Mb. Justice Mitchell,

As remarked by the learned auditor the twenty-second item of the will was written with so great an effort at precision as to make it obscure. We may not expect therefore to get it entirely consistent and clear of difficulty, but must take what appears to be the main intent. On that there is fortunately no room for serious doubt. The appellant and Mrs. Shertz were to get five thousand dollars out of the North Queen and Orange streets property. The. words of the will are to that extent as plain as language can make them, and the process by which this purpose of the testator is reasoned away will not bear a moment’s examination. “ All the devises of this item of said premises, on said northeast corner of North Queen and Orange streets, are hereby made subject to the payment of the amount of said charge and of any balance thereof at any time remaining unpaid, in annual payments of five hundred dollars each, one half thereof to my nephew, George Witmer, hereinbefore named, and the other half to my niece, Mrs. Martha Shertz.” The only real doubt that arises on this clause is whether the. five thousand dollars mentioned is the same sum to the payment of which the devise to Franklin P. Lefevre was made subject in the beginning of the item, or is an additional charge. The latter alternative was not considered at all by the learned auditor and lie was o.f opinion that it could not be the former, because, first, the “ payment ” to which the property was first subjected was to be made “ to my (testator’s) estate .... within six months from the time of my decease,” and secondly, because it was the “ devises ” in the item that were made subject to the five thousand dollars last mentioned in the will, and the first charge was not one of the .devises.

The testator’s language is, subject to the paj'ment of “ the said charge, and of any balance thereof at any time remaining unpaid.” These words of themselves ought to be conclusive. They are not appropriate to the introduction of a new charge, not previously mentioned, as the word “ said ” implies, and if meant for new there was no occasion for reference to any balance remaining unpaid. If newly created by this clause it would all be unpaid.

But on the other hand these words are exactly appropriate to the first charge. It was another and the only other charge of that amount mentioned in the item, and therefore appropriately referred to as the “ said ” charge. The devisee, Franklin Lefevre, was to devote the net income of the devised property “ to the extinguishment of the said charge,” showing an intention for its payment by installments, which makes the reference to a balance remaining at any time unpaid, both clear and appropriate. The testator’s schemes for the payments in both cases are the same. As to the first charge, the devisee is to pay the interest, and out of the net income of the property gradually to extinguish the principal; as to the s.econd, it is to bear interest, and the principal is to be paid in annual installments of five hundred dollars. Taking these incidents in connection with the identity of the amounts, the failure to provide for any other mode of raising the second charge, and the omission to direct any other application of the first, and the specific direction in items twenty-four and twenty-seven to the executors to raise any money that may be required for the general fund of the estate, by mortgage on the Strasburg farm, the conclusion would seem to be clear that both parts of the item referred to the same charge.

Against this conclusion we have only the difficulty raised by . the two words “ payment ” and “ devises.” The testator does call the first mentioned sum a “ payment to my estate .... within six months after my decease,” but a few lines further on in the same sentence he refers to it as “ the interest on the aforesaid mortgage or charge,” and directs the application of the net income “ to the extinguishment of the said charge of five thousand dollars upon said premisos, until the same be fully discharged and paid.” Literally these expressions are repugnant, but if we read the word “payment” as meaning what it is afterwards called, a mortgage or charge, and the six months as applicable to the time when it is to be made or secured, we not only avoid the repugnancy, but make the whole consistent with the subsequent direction to pay the annual installments to appellant and Mrs. Shertz, without disappointing any part of the testator’s purpose.

The difficulty in the word “ devises ” is not serious. The testator had in'that item of his will made successive devises to Franklin Lefevre in trust till his youngest child should come of age, then to the surviving children in common, and contingently on there being no survivors, to Mrs. Shertz. Each of these was coupled with certain conditions and stipulations, and when the testator, who was not a lawyer though he seems to have had some acquaintance with law terms, came to express his intention that everything given, either as an estate or a charge, should be subject to the primary charge of five thousand dollars in favor of appellant and Mrs. Shertz, lie used the word “ devises ” not in its technical sense but as including everything that had gone before and being equivalent to, “ all the provisions of this item are hereby made subject to,” etc.

On the whole case we are quite clear that the testator gave the five thousand dollars charged on the property in question to appellant and Mrs. Shertz, specificallj'-, payable in annual installments of five hundred dollars, and it was the duty of the executors to have so applied it. Not having done so they must be surcharged in favor of appellant.

Decree reversed, account to be restated in accordance with the views herein expressed.