Porter's Estate , 77 Pa. 43 ( 1874 )

Mr. Justice Sharswood

delivered the opinion of the court,

The testator, John M. Porter, intended the bulk of his estate to be appropriated to three objects: 1. The purchase of a lot or lots and the erection of a college or university, to be located in or near Tarentum, for which purpose he gave and bequeathed the sum of $50,000. 2. The purchase of useful books for the library, for which $6000 were to be expended. 3. The improvement of the burial lots belonging to him in the Prospect Cemetery, in building a cut stone wall around the lower end of said lots, and in procuring a suitable monument. For this last purpose he directed that from 3 to $5000 should be expended. $5000 may then be assumed as the amount to be appropriated to the cemetery. He then adds the clause which has given rise to this controversy. “ It is my wish and intention, and I also direct that after my real estate is sold and conveyed the several bequeathments by me made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned; and also a proportionate amount in the college or university buildings, library, &c.”

What does the testator refer to as intended to fix these proportions? We think evidently the clause immediately preceding, and that the proportions in which the residue of his property after the real estate was converted into money, the debts discharged, and the several bequeathments paid, was to be divided between these three objects, were to be as fifty, six and five. It is true that in a former part of his will he had directed certain real estate to be sold and the proceeds to be specifically applied in the extension of the library or improvements to the buildings of the college, as the trustees may deem best. But this was not to be until three years after his death, and it is very significant that these amounts were not for the original erection but for extension, and were to be appropriated to the buildings or library, according to the discretion of the trustees. No proportion between these two objects was to be observed.

Unless we adopt the proportions indicated we have no. other figures in the will to which recourse can be had. It is argued, however, that the clause in controversy relates only to the proceeds of the real estate. Whatever effect such a construction, if legitimate, would have upon the ultimate result, we think it inadmissible. There is certainly nothing in the language of the will, in any construction which can be put upon it, which confines the direction to the proceeds of sale of real estate. It fixes the time for the apportion ment to be after the real estate is sold and conveyed, but does not confine the provision to the proceeds. There was no error then in the construction placed on the will by the court below.

But they refused to allow the executors to retain any amount for a suitable monument to the deceased. It is to be observed that the sum which is to be awarded as the proportionate share to be appropriated to the cemetery is only, in the words 'of the testator, for its “further improvement.”

He evidently contemplated that his original directions upon that subject would have been carried out when the ultimate division of the surplus would take place. It appears that of the $5000 originally retained by the executors on the settlement of the first account, only $242.83 remained, yet no monument to the deceased had been built. The whole was expended in the erection of a cut-stone wall around the lower end of the lots, and other improvements. No complaint has been made of the executors in this respect. We may conclude that it was a mistake on the part of the testator as to the cost of such a wall. It is not uncommon for such mistakes to be made. Mr. Girard never expected that the unsightly stone wall which he directed to be built around his college grounds Avould cost several hundred thousand dollars. The monument on which was to be inscribed the date of the birth and death of his father and mother, brothers and sisters, and also of his own birth and death, and of his adopted sister, was evidently the main object of the bequest. It was not merely the gratification of personal vanity. It Avas a memorial of affection to those whom he had loved, and Avbose memory he had cherished. It Avould be cruel to disappoint such an intention. This court has recognised the expense of a suitable tomb-stone over the grave of a decedent to be a legitimate item of credit in the accounts of an executor, even when no provision on the subject was made in the will of the testator: McGlinsey’s Appeal, 14 S. & B.. 64. The stone-cutter who built the fence, and who says he lost money by the job, testifies that “ a monument corresponding with the fence would cost $5,000.” Under all the circumstances of the case Ave think the executors ought to have been allowed to retain that amount, to be applied Avith the small balance on the former appropriation of $5000 to that purpose. The testator was a gentleman of large estate, and the main purpose of his avíII in the erection of a college and establishment of a library in connection with it, has been defeated by his death Avithin a calendar month after the execution of his will, so that his heirs at laAV and next of kin, who have become entitled to these bequests, cannot be regarded as special objects of his bounty.

Decree reversed and record remitted, that the distribution may be aAvarded according to this opinion. The ' costs of this appeal to be paid from the estate.