Hufsmith's Estate , 65 Pa. 141 ( 1870 )

The opinion of the court was delivered, March 31st 1870, by

Agnew, J.

The articles between Adam Hufsmith and his sons Peter, Jacob, Adam and Philip, evince his intentions as to their shares of his estate. He sold his lands to these sons severally for a large price, not payable until after his death. The whole purchase-money was therefore intended to fall as assets into the hands of his executor or administrator. Then, as an inducement to his sons to buy, he provided that their shares of his estate at his death should not be paid by them, but be deducted from the purchase-money. This was to be their security not only for a share of his estate, but also for the proportion each should receive. Looking at the time when payment of the price of the lands was to begin, to wit, one year after his decease, and the provision for the share to be then first deducted, there can be no doubt of Adam Hufsmith’s intention that this sum so deducted after his death, should be the share each one was then to receive of the entire estate. The language is peculiar: “ first deducting therefrom such sum as will amount to one equal share with the other children of the whole of the estate of the said Adam Hufsmith, which shall be at the time of his decease.”

This clear intent of Adam Hufsmith to suffer the price of his lands to fall into his estate at his death, and then, and not till then, to deduct the equal shares in his whole estate of these sons, must prevail, unless by his will he has plainly made a different distribution. An intent so rational, so just, and so firmly imbedded in the contracts should not be displaced by anything less than a clear and certain intent in the will to the contrary. We must therefore ascertain whether his will exhibits a different intent.

What good reason had he for making a will ? The purpose appears on its face. He wished to enforce the marriage settlement with his wife, and hence she takes nothing more under the will. He desired to subject the portion of the children of his deceased daughter Juliana to the debt of their father Charles H. Heaney; and also to cut off the family of his deceased son Adam, who had not done well, and had suffered the land, embracing his share, to be sold at sheriff’s sale. But when he had done these things his purpose stops, and upon reaching the shares of the other children, we find no intent different from that exhibited in the contracts, and on the contrary a disposition^ his estate precisely accordant, and identical with the contract provision. Thus, he says, thirdly, “it is my will that after my decease all my real and personal estate shall be inventoried or appraised and sold by my executors by public or private sale at their discretion, and the money arising therefrom shall be equally divided amongst my children, namely,” &c. Thus the testator, aware that by the contracts the purchase-money of his lands fell into and constituted a part of his distributable estate at his decease, by his will grasped precisely the same entirety, including also the debt due by Juliana’s husband, and divided it equally among all his children, excepting Adam, who was then dead, and whose share had been expunged by the sheriff’s sale. It was the failure to pereeive this entire coincidence between the contracts and the will in the evident post mortem distribution of the then whole estate contemplated by both, which led to this litigation. The error is in presupposing an intention to prefer sons to daughters not found either in the contracts or the will. But when we discover that the purchase-money of the contracts, by reason of the time fixed for payment necessarily fell into the estate as an entirety, before an equal share could be ascertained, and that by the will as well as the contracts the equal shares were to proceed from the whole estate existing at his decease, we perceive that the equal share of the contract and of the will are identical, and one cannot be superadded to the other. The provision of the contract was but a mode of securing to the sons as purchasers the retention of their shares in a specified proportion. In order to add the portion of the will to that of the contracts we must cast out the equal shares of the contracts from the whole estate remaining at his death, and then divide the same entirety of estate equally under the will, a matter clearly impossible. In other words, it is the same whole or entire estate which is to be divided at death under the will and under the contract. It can therefore be divided only into equal portions, so that the contract-share, and will-share are one and the same thing; the purchase-money not being payable until a year after Adam’s death, and the shares (not till then deducted), being an equal proportion of the then whole estate.

The distribution made by the auditor and approved by the court was therefore right, and the decree of the Orphans’ Court is affirmed, the record ordered to be remitted, and distribution to be made accordingly, and the costs paid by the appellants.

Thompson, C. J., dissented.