261 Pa. 223 | Pa. | 1918
Opinion by
The point at issue here can be understood only as we have before us the main features of the will and codicil,' which together give rise to the dispute. The will of the testator, .Samuel Reisher, late of Chambersburg, dated July 6,1892, contains the following devise: “The Smith property on Main Street adjoining Wm. M. Wallace’s Estate on the South, and Adam Christ on the North, I give, devise and bequeath to my two sons, Daniel S. and Jacob Sener, they to receive the rents, issues and profits thereof during their lives, to be divided equally between them, after all taxes, repairs and insurance is deducted off. Daniel S. to manage said property, and to account to Jacob S., for his share, and in event they can not agree, upon petition to the Judge of the Orphans’ Court by
In searching for the intention of the testator, which, of course, when ascertained, must' govern, whatever difficulty is encountered arises because of the inapt way in which he devises upon the death of the widow the remainder interest in the one-half of the Smith property to the son Jacob S. The language of the codicil is, “and at her death the said one-half devised to wife is given to my son Jacob S. under the same restrictions as I have given him the other one-half in the body of my will.” This reference by the testator to the restrictions in the body of the will is to be given the same force and effect as though the restrictions had been set out in totidem verbis immediately following the gift itself, since will and codicil constitute but one instrument and are to be construed together. The question therefore is what are the “restrictions” in the body of the will to' which the gift to Jacob was subjected? Answer to that question can be returned only as we first ascertain what the testator understood by the word “restrictions,” as he here employed it. We may dismiss all idea that he used it in a technical sense, for it has none. In its popular sense it means limitation or qualification of something said, and to give it any effect in the connection here used it must be so understood and applied, and even then with more or less liberality of construction. Turning to- the will proper as distinguished from the codicil, what is there appearing there that testator could have understood as a restriction on the interest given to his son Jacob S. in the Smith property? Were it not for the fact that by the very codicil whose provisions we are now considering the devise to Daniel S. and at his death to his youngest daughter of a half interest in the Smith property had been expressly revoked, it might with no little force be