64 Pa. 473 | Pa. | 1870
The opinion of the court was delivered,
— Whether we take for our guide the will of Joseph Santee, or the judgment-bond given by Simon Santee to Sarah San-tee, we think the result is the same; the provision made for her is for life. The general intent of the testator to provide for his widow during her lifetime, is too plain for argument. It is manifested distinctly in the reservation of the purchase-money payable to Simon and Joseph William for the land devised to them, and the payment of interest to the widow during life, and the reserved principal to her death. It is also clearly stated in the devise and provision made for Joseph William, in the expression “ during her lifetime,” mentioned in the bequest made to her hereinbefore. This is followed immediately by the provision for the delivery of the beef and potatoes, and the way in which they are to be delivered, alternately every other year “ during the time mentioned in the bequest to her hereinbefore.” In the provision for Simon, perhaps the intent is quite as clear, for there the interest of the f500, and the articles, viz., the hog, wheat, rye and hay, are all placed on the same footing, and are to be paid and delivered “ every year during the time mentioned in the foregoing bequest to her.” Now the interest on the $1000, to be paid to her annually, is clearly stated to be for life, so that with the interest, the specific articles to be delivered every year during the time mentioned in the bequest to her, leave no doubt of the meaning. It is evident, from those clauses, as well as from the presumed intent of the testator to provide a comfortable living for her, that in giving to his widow the occupancy of certain rooms, in his dwelling-house during her lifetime, or as long as she may choose to occupy the same herself, he did not by the latter clause intend to restrict the provision for her support, to the period of occupancy of the dwelling-house. This would be a foolish and harsh condition, that she should be supported only so long as she remained in that dwelling. It would be as much as to say, no matter how inconvenient or uncomfortable her residence there might become, she must abide there or lose her support. It is argued, that the
On the other hand, the defendant gave no evidence of any effort on his part to ascertain where the articles were desired to be delivered. Under these facts, it clearly was not error in the court to charge that it became the duty of the defendant to have called on Mr. Meyers or to have written to the plaintiff requesting her to designate some suitable place for delivery. Indeed the court gave him rather a greater latitude than the contract warranted, for the time of delivery was fixed by the bond, and it was therefore the duty of the defendant to make his inquiry in due season so as to be ready to deliver at the time fixed for payment.
Finding no error in the record, the judgment is affirmed.