159 Pa. 212 | Pa. | 1893
Lead Opinion
Opinion by
It cannot be doubted that the testator intended to dispose of the whole of his estate. The first clause of his will is as follows, “ I order that all my just debts and funeral expenses, also charges for probating this my will be first fully paid and satisfied and after the payment of the same I direct that the whole of my estate remaining shall be divided as follows.” The testator then makes bequests of personalty, and thereafter devises of real estate, preceded by these words: “ After which I direct my real estate to be divided as follows.” Then follow six devises of specific real estate, which, it is asserted by the appellants, and is not denied by the appellees, comprise the whole of the real estate of the testator. It is manifest, therefore, that the testator was perfectly conscious of the distinction between personal and real estate as subjects of testamentary disposition, and that he fully intended to dispose, by his will in question, both of all his personal estate and all his real estate.
The present contention arises upon the meaning of one of the clauses disposing of his personal- estate. It is in the following words: “ First. I give and bequeath to my brother Andrew Reimer any and all of my household goods, books, clothing, furniture, etc., that he may desire. The balance of the personal effects to be divided among the children of my sister, Mary Ewing.” It is too plain for argument that this was an absolute bequest to Andrew of all the chattels named, because he was at liberty to take all of them if he so desired. If he so
It is a perfectly well established rule in the construction of wills in Pennsylvania, that no testator is presumed to die intestate as to any part of his property, if the words of the will will carry the whole. In the case of the Appeal of the Boards of Missions, 91 Pa. 507, Mr. Justice Gordon, after reviewing the provisions of the will in question, said: “ From all this it would appear that the testator did not intend to die intestate as to any portion of his property, real or personal, and this intention must govern, unless there is something in the devise itself which forces us to a different conclusion; for it is a rule long and well settled that a will must be so construed as to avoid a partial intestacy unless the contrary be unavoidable.” Applying this doctrine to the facts of that case, this court held that the residuary clause of that will, which directed the executors
In Jacobs’ Estate, 140 Pa. 268, it was held that a residuary clause in the following words, “ The remainder and residue of my money I give and bequeath to the hospital of the Protestant Episcopal Church in Philadelphia,” carried certain real estate with it to the residuary legatee, not otherwise disposed of. The decision was put upon the ground that the testatrix did not intend to die intestate, and that she did not intend her heirs to have any part of her estate.
In Sweitzer’s Estate, 142 Pa. 541, we held that a bequest in the following words, “ The rest, or nine tenths of my available stocks I bequeath to my sister Charlotte during her lifetime, after her death to be divided equally between the children of my brother,” carried with it cash, notes, shares of corporate stocks, United States four per cent bonds and corporate bonds or loans of a navigation company. This result was reached by the application of the same rule we are considering, and the various securities above mentioned, not having been otherwise disposed of, and the testatrix having said, “ I believe it my duty to dispose of my whole estate, ... I therefore make this my last will,” etc., we decided that the clause of the will above mentioned should be construed as a residuary clause in favor of the legatee named therein.
The decision of the court below turned chiefly upon the meaning of the word “ effects,” in the first clause. The learned judge held that the whole right of the children of Mary Ewing was to take the remainder of the specific chattels which Andrew Reimer did not take. Apart from the consideration that this ruling would produce an unintended intestacy as to the great bulk of the estate of the testator, it is clear from the authorities that the word “ effects ” has a much larger signification than was accorded to it. Thus in 2 Williams on Executors, p. 1015, it is thus stated: “ The word ‘ goods ’ is nomen generalissimum and when construed in the abstract will comprehend all the personal estate of the testator, as stock, bonds, notes, money, plate, furniture, etc. And a bequest of all the testator’s ‘ chattels ’ will have the same effect as a bequest of all his ‘goods and chattels.’ So the word ‘effects,’standing alone, will pass the whole of the testator’s residuary estate,” citing a number of cases. Of course this meaning may be restricted by residuary words, but in their absence they have the enlarged significance stated.
In Hogan v. Jackson, 1 Cowper, 299, Lord Mansfield said': “I take ‘effects’ to be synonymous to ‘worldly substance,’ which means whatever can be turned to value, and therefore that real and personal effects mean all a man’s property.” To this reference may be added Campbell v. Prescott, 15 Ves. Jr. 500a, in which it was held that the word “ effects” in a will was equivalent to “ property ” or “ worldly substance.” In our own case of Dowdel v. Hamm, 2 Watts, 61, Rogers, J., said: “ The term ‘ goods and chattels ’ includes choses in action as well as those in possession : 12 Co. 1; 1 Atk. 182. The term ‘ chattels ’ is more comprehensive than ‘ goods,’ and will include animate as well as inanimate property ; and so of the term ‘ effects ; ’ for the term ‘ goods ’ will not embrace fixtures, but the term ‘ effects ’ may. 7 Taunt. 188 ; 4 J. B. Moore, 78 ; 4 B. & A. 206. The term ‘ effects, both real and personal,’ in a will passes freehold estate, and all chattels real and personal: 2 Chitty’s Black, in the note. Toller, in his Law of Executors, uses the term ‘ effects ’ as including choses in action. . . . And
Recurring to the language of the will in the present case we fail to discover any words restrictive of the general meaning of the word “ effects.” The bequest is “ The balance of the personal effects to be divided among the children of my sister Mary Ewing.” The court below said that this meant the balance of the specific chattels bequeathed to Andrew Reimer which he did not desire. By what authority is such an inference drawn? The will does not say so. It gives Andrew the right to take all of those specific articles, and, assuming that Andrew would take all that he was entitled to take, which is but ordinary human nature, there would be no balance for Mary’s children to take. If the testator had meant to restrict their right to only that kind of goods, or chattels or effects, he would have so provided that there should be such a balance. But on the contrary he so provides that the children can get none of those effects except what Andrew chooses to give them, and then their title would be not under the will, but under-Andrew. Such a construction leads to the absurd result that the will has no meaning at all in that view, because Andrew could give them a portion of the effects with or without the will.
But, independently of this consideration, the plain meaning of the words, just as they stand, does not invite or permit any restricted meaning to the bequest. The first sentence of the first clause simply gives to Andrew certain specific chattels and then stops, thus: “I give and bequeath to my brother, Andrew Reimer, any and all of my household goods, books, clothing, furniture, etc., that he may desire.” This is a simple gift of all the articles mentioned. If Andrew does not desire some of them, those not taken be'come a part of the residuary personal estate of the testator and will pass by any residuary bequest. Then in immediate connection with the first sentence of the clause the testator provides thus: “ The balance of the personal effects to be divided among the children of my sister, Mary Ewing.” Whose “personal effects?” Obviously the testator’s. What are his personal effects ? Necessarily everything
There is not the slightest merit in the third assignment relating to the payment of attorney’s fees for defending the will. It has been decided over and over again that the costs, including counsel fees, for the trial of issues devisavit vel non cannot be charged to the estate unless it is benefited thereby: Koppenhafer v. Isaacs, 7 Watts, 170; Mumper’s Appeal, 3 W. & S. 441; Scott’s Estate, 9 W. & S. 98 ; Yerkes’s Appeal, 99 Pa. 401.
.But if this were not so we cannot discover that any such question was raised in the court below. The very brief appendix that is published does not show that any such question was raised. The opinion of the court makes no allusion to it, and there is no credit claimed by the accountant for any such payment.
The decree of the orphans’ court is reversed at the cost of the appellees, and the record is remitted with instructions to make distribution of the fund in accordance with this opinion.
Dissenting Opinion
Dissenting Opinion by
Dr. George G. Reimer, owing some debts, mainly unpaid taxes, and being owner of very valuable improved real estate
In the meantime, he recovered his health sufficiently to give attention to his business affairs. So far as the will purported to dispose of his personal property, no change was made in it. The sixth paragraph, a devise of a house and two lots in the 22d ward of Pittsburgh to his nephew, C. N. Reimer, was can-celled by scrawling it over with pen and ink. Considerable change in the interval was made in the character of the property ; he sold a lot in the 21st ward devised to his brother Andrew ; also, two lots in the same ward and a piece of ground on Frankstown avenue devised to his sister Mary; he made no new purchases of real estate. By the accumulation of income and the purchase money of the land sold, his personalty at his death, instead of the $7,320.38 at the date of the will, was $21,049.28. The appellants claimed that under the first item of the will this passed to them, the children of Mary Ewing; the appellees resisted this, and alleged, that as to this portion of his estate the testator died intestate, and such was the opinion of the learned judge of the orphans’ court; so he, after deducting cost of a family monument and collateral inheritance tax, distributed the balance, $15,224.87, to the surviving brother, Andrew, and the children of deceased brothers and sisters. From that decree of distribution the children of Mary Ewing appealed, and their appeal is sustained by this court. Notwithstanding the very able opinion of my brother Gbeen, I cannot concur in the judgment.
The contention is determined by the interpretation to be given to the first paragraph of the will, which is as follows:
“ First. I give and bequeath to my brother, Andrew Reimer, any and all of my household goods, books, clothing, furniture,
“ I direct that my executors hereinafter named shall collect the rents from my real estate, and place the same in some good reliable bank until such times that said rents, together with any other moneys I may have remaining after paying my debts, funeral expenses, etc., as aforesaid, shall amount to the sum of five thousand dollars ($5,000), and I then direct that my said executors shall take said five thousand dollars and use the same in the erection of a family monument on our cemetery lot near the town of Tarentum in Allegheny County, Pa., after which I direct my real estate to be divided as follows: ” Then follow six separate devises of real estate, which, it is conceded, included all he owned at the date of the will and, because of sales in the interval, more than at the date of his death.
It is argued by appellant, that the wmrds, “ the balance of the personal effects are to be divided among the children of my sister Mary Ewing,” are to be understood in the same legal sense as if he had said “ The balance of my personalty,” or “ all that remains of my personal estate,” or similar phrases, which necessarily import personal estate as distinguished from real estate. My first impression was that the court below had fallen into error in its interpretation of this first paragraph; but a careful scrutiny of the whole will, having before me the subjects of the bequests and devises, constrains me to hold otherwise.
In interpreting this bequest, we start with the primary rule, which determines the construction of all wills, that the intent of the testator as ascertained from the whole will must be carried out. It is true, as argued, that the words, “ The balance of the personal effects,” might be descriptive of and include all and every kind of personal property, and pass the money here in dispute; it is often used in wills as a synonym for personal estate, and, as the very many adjudicated cases cited, both from
The cases cited by appellants are, in their form of expression, all distinguishable from the one in hand. In Campbell v. Prescott, 15 Ves. 507, it was held, these words passed the whole personalty: “I give to my sons all my .... merchandise stock, with jewels, plate, household goods, furniture, and all effects whatsoever.” In Mitchell v. Mitchell, 5 Mad. 69, this was the language of the testator: “All and singular my plate, linen, china, household goods and furniture, and effects that I shall die possessed of.” This was held to pass the personal estate. In these and the other cases cited, the word “ effects ” is framed in paragraphs different from that in this will; there was no indication from what the testator said to restrict the sweeping effect which the law otherwise gives to the word. But here, as is said by the court in Ennis v. Smith, 14 How. 400, “ Effects in French, or the word effete has the same meaning in common parlance and in law that it has in English. Its meaning properly, in either, when used indefinitely in wills, but in connection with something particular and certain, is limited by its association to other things of a like kind.”
But it is useless to go over the many cases cited on each side here, for as is said in Steele v. Thompson, 14 S. & R. 84: “Every case of this cast is individual; there can be no adherence to precedents, for no two wills can be exactly alike.” And as is said in Hoge v. Hoge, 1 S. & R. 156: “ Cases on wills have no great weight unless exactly similar in every respect. To render them authoritative, they should be in verbis ipsis
The argument based on the context preceding the paragraph in dispute, in a doubtful case, would probably turn the scale in favor of appellant. In this introductory paragraph, the testator positively announced an intention to dispose of his whole estate, not to die intestate as to any part of it; and that this, being an intention which the law favors, the interpretation asked for, it is urged, should be put upon the first paragraph. My trouble is, that these are the only words in the will which indicate an intention to dispose of this large sum of money in the executor’s hands. After directions as to payment of debts and funeral expenses, and before proceeding to dispose of his estate, he says : “ I direct that the whole of my estate remaining shall be divided as follows.” Giving to these words their literal meaning, they are a positive declaration of an intention to die testate as to the whole .estate, real and personal. As to the weight to be given to such declarations in the introductory clauses of wills, the remarks of Chief Justice Tilghman in Steele v. Thompson, 14 S. & R. 84, are in point. He says: “ In connection with other circumstances, such an introduction may be worthy of consideration, but the better opinion seems to be there is not much in it, because it is generally considered by the drawer as a matter of form, and put down of course before he begins to express the will of the testator; and because it cannot be doubted that most men when they make their wills do intend to dispose of their whole estate, whether they say so or not.” And as is held in Rupp v. Eberly, 79 Pa. 141, while these introductory words are to be considered as illustrating the intention they will not of themselves pass property which is clearly omitted. Here, while the testator said he intended to dispose of his whole estate, he clearly did not do so. There is no ambiguity in the will; the first paragraph bequeaths to his brother so much of his household goods, books- and furniture as he chooses to accept, and the balance of the personal effects is bequeathed to the children of his sister; he directed that his money should be applied to his debts, and $5,000 to the erection of a monument; he devised all of his real estate in sepa
