197 Pa. 555 | Pa. | 1901
Opinion by
The facts of this case fully appear in its report in 11 Pa. Superior Ct. 303. The part of the will of John Walters to be considered is as follows: “I hereby give to my son, B. F. Walters, and his heirs, all my estate, real, personal and mixed, and to whatever I shall be entitled at my decease by note, book account or in any other way upon the. following conditions, viz: It is my will that the said B. F. Walters and his heirs pay all my just debts and my funeral expenses, also to pay to
As there is a blending of the real and personal estate and a gift of both on condition that the legacies shall be paid, it is clear that the pecuniary legacies are charged on the land: Holliday v. Summerville, 3 P. & W. 533; Pyer v. Mark, 129 Pa. 529. It was so held by the Superior Court, but it was decided that the direction that Lucinda should have “her living in the old homestead ” was not intended as a charge for her maintenance, and that it imposed a personal obligation only on the devisee of the land.
We see no valid reason for the distinction drawn. These legacies are alike conditions on which the land was devised. If the testator had used the words “ to have her living from the homestead ” or “ from the proceeds of the land,” a direct charge for maintenance would have been created: Gibson’s App., 25 Pa. 191. The words he did use, considered in connection with the prior gift of the pecuniary legacy, which is clearly a charge, puts both legacies on the same plane. The appellant is given $1,000, and in the same sentence she is “further” given a living on the old homestead. The living she is to have is not in her brother’s family, or in his home wherever it may chance to be, but in the place which had been the family home and which the testator expected would continue to be the home of his son and daughter. Her maintenance there, we think, he intended to secure in the same manner in which he secured the payment of the money, by making it not a personal obligation merely, but a condition of the devise of the land to his son. South Mahoning Twp. v. Marshall, 138 Pa. 570, is not authority for the order made. In that case the intent of the testator was to provide not for the support, but for the personal care, of a son who was able to
The legacy not being determinate, the charge on the land was not discharged by the sheriff’s sale. The legatee in order to enjoy its benefit was not bound to remain on the homestead among strangers: Steele’s App., 47 Pa. 437; South Mahoning Twp. v. Marshall, supra.
By his acceptance of the devise, B. F. Walters assumed a personal liability for the ' support of his sister. Both ho and the land were bound. He has continued, although insolvent, to support her in the home which he established after the sheriff’s sale. If the support which she has received and which he may hereafter be able to furnish is equal in value to the support provided for her by her father’s will, she is not entitled to recover anything from the owner of the land. She is not entitled to both support and the money value of it. But she is entitled to support equal in value to that which the will gives her. The true measure of the allowance to her is the difference, if any, between the money value of the support provided for by the will and that which her brother has furnished and will hereafter be able to furnish. The finding of the auditor, although not so stated by him, is based on this rule. It appears from his report that, in determining the amount of the allowance, he took into consideration what she was given by the will and what she has received and what she will probably receive from her brother in the future, and the conclusion reached by him does, as nearly as possible, justice to all the parties in interest.
The order is reversed, a,nd the decree of the orphans’ court dismissing exceptions to the report of the auditor is reinstated.