Rife's Appeal

| Pa. | Oct 5, 1885

Mr. Justice Trunkey

delivered the opinion of the court, October 5th, 1885.

The deed dated October 13th, 1868, contained the following: “Immediately after the decease of the said Isaac Rife, should any real estate be left belonging to said trust, the same shall be sold by my said trustee, and the proceeds arising therefrom and said principal sum, together with all my other property, shall be equally divided among my three named children, share and share alike, to wit: Catharine, intermarried with Richard Stewart; my sons Jacob and Levi; or in case of the death of either of them, to their heirs or representatives. It being understood and intended that no part of this trust estate is to be paid by my said trustee after my decease to my son William P. Rife, but the whole thereof to be given in equal shares to my daughter and sons, as above directed and designated.”

Eckert, the trustee, filed his account on December 13th, 1879, and on January 19th, 1880, was discharged from the trust “upon the payment over to his successor the balance in his hands.” On the day that Eckert filed his account, Rife executed the second deed of trust to Milton Heidlebaugh, vesting in him for the purposes of the trust the balance in the hands of the former trustee, together with other moneys or property. This deed had a provision as follows: “ It is hei’eby understood that in case said Rife should die without leaving a last will and testament, which he hereby reserves the power to make, his son, William P. Rife, shall receive no share of his property unless otherwise disposed of by the said last will and testamexxt of said Isaac Rife.”

So far as relates to the conduct of the property and the maintenance of Isaac Rife while he lived, the provisions of the deed are substantially alike. The dischai-ge of Eckert was upon his own petition to the court, agreed to by Rife, and the court appointed Heidlebaugh oxx Rife’s petition. Eckert paid the balance in his hands directly to his successor. The second deed put additional money within the operation of the trust and named another trustee ; these are its ostensible purposes. Ilence, although the first trustee was discharged, the trust was continued; but had the trust itself been revoked, it would only be a fact to consider in ascertaining whether there was an intent to revoke the testamentary disposition of the estate. That a will in the form of a deed, or a will constituting part of an instrument, the other part being a deed, may be revoked in the same manner as a formal will, in technical language, is not denied by the appellant. Question may arise whether an instrument is a will, not whether a mere will is revocable by the maker. In Turner v. Scott, 51 Pa. St. 126, Frederick’s Appeal, 52 Id. 328, the instruments in question were in form of a deed; each was held to be a will, and revoked by the subsequent will of the testator.

Clearly the first deed included a will disposing of the trust estate, together with all the testator’s other property; and a direction by the testator that no part of the trust estate, after his decease should be paid to his son William by the trustee. In the second deed he declares that in case he should die without leaving a last will and testament, which he reserves the power to make, his son William shall receive no part of his property. The testamentary clause in the second deed contains no revocation. At most, aside from iteration of the disinheritance of William, the testator expresses an intention to make a will.

A mere intimation by a testator of his intention by a future act to make a new disposition, does not effect an actual present revocation. It is not sufficient to revoke & will, that the testator made a subsequent will, unless the subsequent will differs from and is inconsistent with the former: 1 Jarman on Wills, *171, *173.

A will is valid however irregular in form or, inartificial in expression, if it discloses the intention of the maker respecting the posthumous destination of his property; and if this appear any contrary title or designation by him will be disregarded. The same instrument may be partly a deed and partly a will; 1 Jarman on Wills, 33, n. 7 (*18). Whatever the form of the instrument, if it vest no present interest, but .only directs what is to be done after the death of the maker, it is testamentary: Turner v. Scott, Supra.

The learned judge of the Orphans’ Court held that the first deed of trust was revoked, and consequently the testamentary disposition fell. On this basis his conclusion that under the intestate laws William is entitled to share with his brothers and sister is unassailable. The second deed has no posthumous disposition — only a declaration tbat William shall receive no share of the property. Were it not for the prior testament the case would be within the rule, “ that merely negative words are not sufficient to exclude the title to the heir or next of kin. There must be an actual gift to some other definite object.” We fail to discover that the testament in the first instrument is revoked. No present intent, at the time of the execution of the second instrument, to revoke the former testament is evidenced by the circumstances. Nothing in the second clashes with the first, both can consistently stand'. That the testator contemplated the making of a formal will at some future date, was not a revocation of the testamentary disposition already made.

Decree reversed, and now it is considered and decreed that distribution of the money be made to the legatees, Jacob E. Rife, Levi E. Rife and Catharine Stewart, in accord with the auditor’s report. Costs of appeal to be paid by the appellee.