45 Pa. Super. 451 | Pa. Super. Ct. | 1911
filed the following opinion:
William H. Stoever by his will provided, inter alia, as follows: “Item: I give, devise and bequeath unto my nephew Jacob Melancthon Stoever, and to his heirs and assigns, my farm near Myerstown, Lebanon County and State of Pennsylvania, upon which I at one time resided, containing fifty acres, more or less, at and for the sum of one hundred and seventy-five dollars (1175) per acre, which said purchase money I order and direct him to pay. to the following named legatees in manner following:— Item: I give and bequeath one thousand dollars thereof to my friend Nathaniel Lieb, the tenant of my Berks County farm, which is situate near the City of Reading and to him, his heirs and assigns absolutely.” Then follow four other bequests, similar in form including one to his wife Lucy in payment and satisfaction of a marriage contract, all of said pecuniary legacies aggregating the sum of $7,600. The testator further provided: “Item: I do hereby charge the purchase money at the rate of one hundred and seventy-five dollars per acre as aforesaid as a lien upon the farm devised as aforesaid to my nephew Jacob Melancthon Stoever; should, however, my nephew, refuse to take said farm at said price of one hundred and seventy-five dollars per acre, then and in such case, I order and direct my hereinafter named executors to sell the same, either at public or private sale, which to them may seem most advantageous,” etc. “Item: It is further my will that my executors hereinafter named, as soon as to them may seem proper after my decease, sell the balance of my estate, real, personal and mixed, including my farm near Reading, either at public or private sale, as to them shall seem most advantageous to my estate, and collect all moneys due my estate, including whatever purchase money may be due by the said Jacob Melancthon Stoever for the farm devised to him, and after the same shall have been converted into money, I dispose of the same in manner following: Item:—I give and bequeath five hundred dollars thereof to Y. Luther Stoever,
Jacob Melancthon Stoever refused to take the farm at the price charged therefor by the testator and it was sold by the executors under the power given them by said will for the sum of $4,934.08.
The auditor appointed to make distribution of the balance in the hands of the executors under their accounting, concluded that the said bequest of purchase money of said farm amounting to $7,600 were general legacies and not subject to abatement for any deficiency in the selling price of said farm. Exceptions were filed by the residuary legatees to the auditor’s distribution excepting to the allowance of said legacies in full as well as excepting to the payment in full of the legacy to V. Luther Stoever.
The position of the exceptants, briefly, is that said legacies of purchase money charged on the farm devised to Jacob Melancthon Stoever are specific and must be confined to the proceeds of the sale of this farm; on the other hand, these legatees contend that their legacies are demonstrative, not liable to any abatement for the deficiency between the selling price of the farm and the amount of the legacies charged against it in the devise to Jacob Melancthon Stoever and payable generally out of the estate of the testator.
“A demonstrative legacy is a gift of money or other fundible goods charged on a particular fund in such a way as not to amount to a gift of the corpus of the fund or to evince an intent to relieve the general estate from liability in case the fund fails:” 18 Am. & Eng. Ency. of Law (2d ed.), 721.
Among the earlier cases in Pennsylvania bearing on demonstrative legacies are Cryder’s App., 11 Pa. 72, in which testator directed that his real estate should be sold and then gave certain legacies, directing that they “be paid out of the sale of” certain real estate, and Balliet’s App., 14 Pa. 451, where testator devised certain lands subject to the payment of a certain sum of money by said
In Walls v. Stewart, 16 Pa. 275, the doctrine of demonstrative legacies was carefully considered, the English and American authorities reviewed and the law with reference to this class of legacies stated to be as follows: “wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific.” In this case the legacy was directly charged upon land devised, to be paid by the devisee and was held to be specific.
In Welch’s App., 28 Pa. 363, real estate was devised to a son and the sum of $300 was bequeathed to a daughter to be paid by the son out of the profits of the real estate bequeathed to him, and it was held that the legacy was demonstrative, that the real estate charged was a mere auxiliary fund provided to secure its payment. The general rule was here stated to be “that where the legacy is so connected with the fund out of which it is payable, that the legacy and the fund are the same, it is specific.”
In Smith’s App., 103 Pa. 559, testator bequeathed to his son “the sum of $2,000, out of the sum of near $4,000 now on deposit in the Farmers Bank, providing the said amount and interest are collected from the assets or stockholders of said Bank,” and to another son the sum of $1,500 with the same proviso, “the remaining part of the money collected from said Bank to be divided equally between” said sons. Testator collected the claim in his lifetime. Held that the said legacies to the sons were specific.
In Hammer’s Est., 158 Pa. 632, testator directed conversion of his real estate and out of the proceeds directed $3,000 to be paid to a son “to equalize him with my other sons who were advanced $3,000 each in the purchase of real estate.” This legacy was held to be demonstrative,
In Snyder’s Est., 217 Pa. 71, testatrix bequeathed $600 of bank stock "of a named bank and $2,000 of the bank stock of bank referred to above,” held, that these bequests were not specific, and that testatrix did not give to the legatees specific shares of bank stock belonging to her but gave in general terms a certain amount of bank stock in the bank, without identifying any particular shares or distinguishing those given from all others of the same kind of stock.
In Pruner’s Est., 222 Pa. 179, testator bequeathed certain insurance policies held by him as security for a debt. The insurance matured and testator received the proceeds of the policies which he invested in bonds; held that the legacy was specific and was adeemed by the maturity and payment of the policies before the death of the testator.
Black’s Est., 223 Pa. 382, in effect held that the legacy was specific, where testator bequeathed the proceeds of two bonds to legatees and during his lifetime collected the amount of the bonds, investing the proceeds in a mortgage, on the ground that this was a bequest of the proceeds of the bonds and these proceeds were traced out and identified intact.
Bearing in mind the somewhat shadowy distinctions of the cases, that courts incline against construing legacies as specific and that the intention of the testator should be clear to make a legacy specific, we must, however, not lose sight of the fact that the primary purpose of all rules of construction and interpretation is to arrive at the intention of the testator.
In the case at hand the testator in clear' and express language devised the farm to his nephew at and for a certain sum of money and then gave part of these proceeds
The only indication of intention to make these legacies general is the provision giving $2,000 of this purchase money to testator’s wife in payment and full satisfaction of a marriage contract, calling for the payment of this sum to her after his death. But this loses its force when we consider that this amount was payable in full in any event as a legal claim against his estate and in fact was paid by the executors and credit taken therefor in the account.
The fifth exception was evidently taken under a misapprehension. After providing for the conversion of the residue of his estate, including the collection of the balance of purchase money, over and above said legacies, for the farm devised to Jacob Melancthon Stoever, the testator gives $500 of this converted residue to V. Luther Stoever, his heirs and assigns. This is a general legacy, in
—Legacies are presumably demonstrative and not specific, and in order to proclaim a legacy specific it must appear not only that it is charged upon and payable out of a fund pointed out by the testator, but also that it is clearly the intention of the testator to exonerate his general estate from the payment of it, or of any part of it because of a deficit in the primary fund: Welch’s App., 28 Pa. 363; Smith’s App., 103 Pa. 559; Hammer’s Est., 158 Pa. 632; Eavenson’s App., 84 Pa. 172; Hoppel’s Est., 5 Phila. 216.
And now, to wit, August 24, 1910, the first, second, third, fourth and sixth exceptions, so far as they pertain to the legacies charged against the farm devised to Jacob Melancthon Stoever, and payable out of the purchase money of said farm, are sustained; the fifth exception is overruled. The report is referred back to the auditor to recast the distribution in accordance with this opinion.
Opinion by
If we were to confine our attention to the definitions given by approved text writers, or to those decisions of the courts, English and American, which may be said to furnish typical illustrations of each class, the distinction between a specific legacy and what is now called a demonstrative one is easy to perceive. This distinction, resting as it does on sound reasoning as well as abundant authority, has never been departed from by our courts, and is a solidly established part of our system of jurisprudence.
In Walls v. Stewart, 16 Pa. 275, the whole subject was most carefully examined by Mr. Justice Bell in a learned opinion reviewing the older cases, both English and American. The true line of demarcation which segregates specific legacies from all others is there clearly pointed out in the following language: “Indeed, I think an examination of the authorities, English and American, will show that wherever an intent is exhibited to make distribution of the value of lands, either by means of a sale and division of proceeds, or by the charge of a sum in numero, payable by the devisee of the land as a quasi partial purchase of the estate devised, the bequests are always treated as specific, and, consequently, liable to
. Turning then to an examination of the will of the testator in the case before us, we discover his primary intent, with relation to the particular legacies in question, in the following language descriptive of what he intended to bequeath and the persons among whom it was to be divided: “I give, devise and bequeath unto my nephew, Jacob Melancthon Stoever, and to his heirs and assigns, my farm, .... containing 50 acres more or less at and for the sum of one hundred and seventy-five ($175.00) dollars per acre, which said purchase money I order and direct him to pay to the following named legatees in manner following: Item—I give and bequeath one thousand dollars thereof to my friend Nathaniel Lieb (the present appellant) and to him, his heirs and assigns, absolutely, etc.”
Confining our attention for the moment to this significant language, we at once discover that what the testator intended to do was to give to the persons he was about to name the purchase money which was to be paid by the devisee of his real estate. We have here no case in which the testator evinces his intent to give certain sums of money to certain legatees and then merely indicates his will or preference that such legacies should be paid out of a certain portion of his estate; but on the
Unfortunately it turned out that there existed in the mind of the testator a very erroneous idea as to the true value of the land he had thus devised. His devisee refused to accept the land at the valuation, as he of course had the right to do. The testator had evidently contemplated this possibility because he expressly provided that in such case his executors were to sell the land. But he does not appear to have contemplated, even in that event, that there would likely be any diminution of the fund, a share in which he had previously given to this appellant, because he makes no other provision for the payment to him and the others in his class of any other sum or in any other manner except in the general provision we have first quoted.
The learned judge below in a careful opinion has, we think, himself fully vindicated the conclusion he has reached, and it is doubtful whether we have added much of value in support of it.
Decree affirmed and appeal dismissed at the costs of the appellant.