Espy's Estate , 207 Pa. 459 ( 1904 )

Opinion by

Mb. Justice Mestbezat,

We think the learned judge of the orphans’ court properly disposed of the question involved in this case and that the appeal should be dismissed. His position is fully sustained by the authorities he cites.

It is well settled that unless a testator charges a legacy upon his real estate, his personal estate is the primary and only fund out of which it can be paid. It is conceded here that the testator did not expressly charge the legacy of the appellant’s decedent on his real estate, but it is claimed that, by a proper construction of the entire will, there is a clear implication that he intended to do so. As the trial judge observes, we think there is nothing to justify this conclusion. The legal presumption that the testator did not intend to die intestate is fully met and satisfactorily answered by another presumption of like force and effect, that the heir is never to be disinherited except by plain words or necessary implication: Scbmidth’s Estate, 183 Pa. 641. Here, if the position of the appellant be correct and we construe this will as showing it to be the intention of the testator to have his real estate applied to the payment of the legacy, the heirs are disinherited and deprived of any part of their ancestor’s estate. There are no “ plain words and necessary implication ” arising from the language of the instrument demanding an interpretation which would produce such a result.

The legacies were not to be paid until after the death of the testator’s wife. The amount of the inventory of his personal estate was about equal to the total amount of the legacies. The assets were productive and it is manifest that he believed ■that the income from them would, in addition to the use of his homestead, be sufficient for the support of his wife and daughters, and that the principal would be adequate to pay all the legacies. This is not a case in which the testator had no personal estate, which is regarded as a circumstance tending to show his intention to charge his real estate with the payment of legacies; but simply one where the testator overestimates the probable value of his personal estate at the time it is required to be applied in satisfaction of the legacies.

The omission of a residuary clause when considered in connection with the language of this will and the extrinsic facts, cannot be regarded as of very much importance in ascertaining the intention of the testator as to what part of his estate should be applied to the payment of the legacies. The omission may have been a mere inadvertence or it may have been intentional on the part of the testator. But be that as it may, had he intended to make his real, as well as his personal, estate subject to the payment of the legacies, he could easily have so declared or have added a residuary clause which would have accomplished the purpose. On this branch of the case we may appropriately conclude by quoting from the opinion of Mr. Justice Green in Schmidth’s Estate, supra: “ The omission of a residuary clause in wills is not by any means an uncommon occurrence. But •because of such omission it is neither necessary nor proper to give the residue to some specific legatee upon a forced construction of words which do not indicate such a purpose in the mind of the testator. In all such cases the testator is simply intestate as to the residuary estate, and it must then be distributed according to the intestate laws.”

¥e discover no error in this record which would warrant us in reversing the court below and hence, the decree is affirmed.