Little's Appeal

3 Walker 225 | Pa. | 1878

The Supreme Court reversed the decree of the Orphans’ Court on January 20, 1879, in the following opinion, per

Trunkey, J. :

Lord Eldon said : “Election is where the testator gives what does not belong to him, but does belong to some other person ; and gives that person some of his own, by- virtue of which gift a condition is implied, either that he will part with his' own estate or shall not take the bounty.” Most abundant authorities have settled the legal principles governing cases of election, among which are the construction upon which a party is put to an election must be clear upon'the face" of the will * and he will never be put to an election upon a doubtful construction. When clearly expressed or necessarily implied, the party to whom the benefit is given, but claiming a right thereto, must elect, or otherwise make compensation out of what is clearly given to him. :

It would be mere supererogation to do more than to ascertain if there is, in William C. Little’s will, a clear intention on his part to dispose of that not his own. It is conceded that the testator owned the real estate occupied for the business of the firm, and half of the personal property connected therewith. Ilis son and partner, Ferdinand, owned the other half of the personalty. He devised' and bequeathed to his children, Ferdinand, Caroline and Mary, “my store property and lot of ground; also, the business conducted therein, the tools, and personal property connected therewith, and all debts due or owing me from or by said business, and also any and all moneys deposited in bank, to hold to them, their heirs, executors, administrators and assigns, as tenants in common, so that the said Ferdinand S. Little may have and hold one-half part of the said store property and lot of ground, business, tools, personal property and bank deposit, and the said Caroline and Mary Little may have and hold the other half part (each one-fourth part) of the same in fee.” After bequests to his other children, and approving his late wife’s will, he adds, “I declare my intention to be that the advances I have made during my lifetime, with the bequests and gifts herein made, shall be equivalent for any seeming inequality of the disposition of my property by this my last will and testament.” The will is wholly free from ambiguity, and evidences care and thoughtfulness in the testator. Though it was said that it “is an artificially drawn instrument by some one who knew merely the sound of legal phraseology,” yet the meaning is evident alike to the acute lawyer and the unskilled layman. Only by dint of legal lore can the former bring himself to doubt; and even then of the legal effect of the testator’s words rather than of his intention The “very blending of the real and personal estate,” and giving one-half thereof to Ferdinand and the other half to Caroline and Mary, is unmistakable. The realty add entire personalty are treated precisely alike. To make sure of his object, beyond danger of defeat by construction, he-directs that Ferdinand “may have and hold one-half part of the said store property and lot of ground, business, tools, personal property and bank deposit, and the said Caroline and Mary Little may have and hold the other half (each one-fourth part).” His language is too sharp-cut for interpretation. It presents no difficulty. The real estate, the business conducted therein, and the tools and personal property connected therewith, are what the testator gave. If Ferdinand takes half the land and goods he did not own, he must give half the goods he did own, or otherwise make compensation to Caroline and Mary.

So much of the decree as is inconsistent with the ruling in the foregoing opinion is reversed, at costs of the appellee, and record remitted for further proceedings.