86 Pa. 386 | Pa. | 1878
delivered the opinion of the court,
The first point of notice is, that on its face it appears that the will was not written by a learned lawyer, or a skilful conveyancer. Hence the language is not so conclusive of intent. The next matter is the evident intent of the testator to equalize his children in a general way; and the portion of John, the only son, is much larger than those of his sisters. John takes his “large farm” of three hundred acres, the grain seeded out, and all farming stock and utensils; Catharine,'two parcels containing two hundred and twenty-five acres, and pays thereout $4300 to her sisters Sarah, Polly and Harriet, and they take smaller farms; Sarah one hundred and thirty-seven acres, Polly one hundred and ten acres and Harriet one hundred and eighteen acres. All the personal estate is then divided equally among the five children, John, Catharine, Sarah, Polly and Harriet, excepting additional to Polly and Sarah, $909 and $1000. It is thus evident that the charge of $4300 against Catharine’s land was to produce equality of division, the children of Catharine taking the advantage of the increased size of her farm.
With this exhibition of general intent we come to the special intent.of the testator, as to the quantity of estate limited to his children. It is brought out clearly in the fourth and second items from the end of the will. The fourth is in these words : “I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children, shall have the use, income and profit of the said lands and farms during their lifetime.”
Now if we treat the word “heirs” in the principal devise to John Stoudt as conclusively descriptive of the quantity of his estate, the entire item first quoted is clearly repugnant and nugatory. But we cannot do this if by any proper interpretation the items can he reconciled. To hold to the legal and technical meaning of the word “heirs” we must assume that the testator was grossly ignorant of his own intent, and of the law also, when he came to
This clause further interprets the word “heirs.” Here children, the primary word, precedes “heirs,” the secondary, and the latter, as the alternative of the former, expresses the testator’s own thought. Yet this clause standing alone might still leave the intention liable to some contest. But it is followed by another part of the same united sentence, leaving the intent free of all doubt. Thus — “ and they my said children shall have the use, income and yorofit of the said lands and farms during their lifetime.” Here we have two express declarations of intent: 1. The subject of the children’s devise is clearly defined — the precise interest of a life-tenant by the use, income and profits of the lands. Thus the usufructuary interest alone is given, and this is all a life-tenant can take. Not content with defining the subject, he becomes finally and fully explicit, and expressly defines the term or duration of the estate itself viz., “during their lifetime.” Now the full meaning and intent of the testator is fully developed and clearly expressed. His own children shall have the use, income and profits of the lands devised for life only, without power to alien or encumber, in order that these lands shall remain after their death for their children.
Then follows the item next to the last, which confers a power to dispose by will. Here comes in another thought of the testator, perfectly natural and obvious. Remembering that one daughter is unmarried, and that some of his married children may die without leaving children, or that their children may differ in merits or be unequally provided for, and that he has just prohibited his devisees from enjoying more than a life-estate, he thinks of these contingencies, and now gives a power of appointment by will; and to
Decree of the Orphans’ Court dismissing the petition affirmed, with costs to be paid by the appellants, and their appeal is dismissed.