White v. Commonwealth ex rel. White , 110 Pa. 90 ( 1885 )

Mr. Justice Green

delivered the opinion of the court, June 4th, 1885.

The will of the testator was intended to, and did, dispose of the whole of his estate. The contention here turns upon the character of the interest given to the widow. It does not seem to us that there is any obscurity as to the testator’s meaning. He first directs that all his just debts, funeral expenses and other charges shall be paid out of his personal estate. Immediately following he adds, “Then my will is that the property, both personal and real remain as now is with my family for the term of one year. Then after the allowance of the one third of my property to the widow, my will is that all my children share and share alike including my step-son William.” In the first of these sentences he directs the temporary retention of “ the property ” which he expressly defines as including “both personal and real.” In the second he directs the division of the same subject matter, calling it “ my property,” manifestly using the word “ property ” in the same sense in both instances. Even without explanatory words the term “property,” in such a connection, would import both realty and personalty. As to the personalty the widow would be entitled to one third absolutely without the will, and as to the realty, to one third of it during her life. But the testator aggregates them and says, “ after the allowance of one third of my property to the widow my will is that all my children share and share alike.” Certainly it could not be fairly said that he meant to give the widow a life interest only in his personal estate, and yet the words which give her an interest in the personal estate are the very same which give her an interest in the real estate, and the descriptive word employed to designate the subject of the gift is common to both. The word “ allowance,” if considered with reference to the personalty only, would undoubtedly be regarded as the equivalent of “ bequest ” or “ gift.” Why then should it not have the same significance when applied to the aggregate of the estate defined as “ property ? ” The words “ the allowance of one third of my property to the widow,” are a designation of the proportion of the estate which the widow is to have. There are no words in the will which limit the estate or interest she is to take, and as the property is principally real estate, the ninth section of the Act of 8th April 1833 (Purdon 1475, pi. 10) becomes applicable and clothes her with a fee. The words of that section are, “ All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.” As to the personalty, of course the interest vested is absolute. If the testator had said, “ I allow to the widow one fcmru of my property,” there could have been no question as to his meaning an absolute gift of the third part of his estate. It is a little singular that both the words of gift, and the subject matter of the gift, to the children, are less specific and certain than they are to the widow, until the remainder of the will is read. That which the children are to “share and share alike ” is the remainder of the property after the allowance of one third to the widow. In other words the children take a part, a large part it is true, of the very same property of which the widow takes a part. No estate is defined to either class of devisees, not even by the words in brackets which follow, and say simply that the children shall have equal division of the property. We are clearly of opinion that under this will the widow took one third and the children two thirds of the testator’s property in fee simple, and absolutely. This being so it would not have been in the power of the Orphans’ Court to have taken from the widow her interest in the estate by any order they could have made in the proceedings in partition. But that court did not assume to do so. On the contrary the widow’s interest in the valuation money was set apart to her absolutely, and only the remainder, two thirds of the whole, was distributed to the phildren. There was no decree that the interest only of the one third, $965.68, should be paid to her, nor was there any direction that the principal, $965.68, should be paid to the children after her death. The order for the recognizance simply said, as to the widow, that, it should be given “to secure the interest of the widow ” without saying what that interest was. The recognizance itself was given to secure the payment of the whole amount of the valuation money to the persons entitled to it without defining the shares of any. The persons entitled were called “ other heirs of the said James White,” but as the whole estate was given bjr will the persons who took it were entitled to it as devisees onty, and not as heirs technically. Of these the widow was devisee by as good a title as the children. Nor did the recognizance assume to fix any sum of annual interest to be paid to the widow nor any annual interest whatever. It simpty said “and shall pay . the interest on so much thereof as interest should be paid on, to the widow of said James White, deceased, during each year of her life in equal semi-annual installments.” This merely bound the recognizors to pay to the widow such interest as should be paid to her; but as her estate was not limited to annual interest, there was no annual interest payable to her simply as such, and the words of the recognizance did not change, or tend to change, the real character of her interest .in the.fund. Of course, she would be entitled to interest on her share of tbe fund until the principal was paid, in tbe same manner as the other devisees. There is nothing in the doctrine of estoppel which would make it applicable to the widow in this case. She could take her interest as long as she chose, without in any manner depriving herself of her right to have the principal whenever she wished, just as any ordinary creditor might do with his debtor. These views dispose of all the contentions in the ease, and fully justify the action of the learned court below.

Judgment affirmed.