Thompson's Appeal , 100 Pa. 478 ( 1882 )

Mr. Justice Gordon

delivered the opinion of the court, May 15th 1882.

It is an elementary principle that, in the construction of a will, the intention of the testator must govern, and to this intention, when fairly discovered, technical language, and even the ordinary meaning of words, must give way. What we have to do in the case in hand is to discover, if we can, the intention of Benjamin Thompson, the testator, as it is expressed in the will which we have before us.

By the second item of that instrument, it is directed that the farm in Buffalo township, Union county, on which the testator resided immediately preceding his death, should be rented until his youngest child came of age. The second item provided that his widow should continue to reside upon this farm; that she should have such part of the buildings as might be convenient and comfortable for her use, and that she should have “ one-half of the income of said farm,” for the support and maintenance of herself and her minor children. Then, in the next clause, having in mind the same cardinal thought, that is to say, a comfortable support for his wife and younger children, he emphasizes the directions contained in the second and third items by providing that the farm should not be sold until the time arrived when the youngest child, if living, had reached the age of twenty-one years, and, in thé meantime, it was to be rented for the purpose already indicated. Now we may admit that in the ordinary, commercial sense, the term “ income,” especially when connected with the word “ rent,” may mean net or clear income, and in that view of the case, the judgment of the court below must be taken as correct: the widow was entitled to but the one-half of the one-half, or one-quarter, of the product, or whole income of the farm. But in arriving at the meaning of words we must understand not only how, but by whom, they are used, otherwise the intent of the person using them may be wholly perverted. One may say that his income from a certain property amounts to a certain sum, and yet he may be speaking merely of the accruing rent, without regard to either insurance, taxes or repairs. The lumberman wild uses tlie timber from bis own lands, will speak of tbe income from bis business without considering the value of the stumpage, or even the interest of the money which the land cost him. And we well understand that, outside of business circles, it is so common thus to speak of income, that we can never know whether net or gross income is meant without further inquiry. Had Thompson, in his lifetime, spoken of being in the receipt of the one-half of the income of his own farm, we suppose no one would have misunderstood him; certainly not his neighbors who, like himself, were farmers, and who knew, from the general custom of the country, that the income of a farm was its entire product, which was to be divided between the owner and the tenant, or cropper. Nor do we see why, from the farmer’s standpoint, this is not a correct application of the word. Worcester, among other definitions of this word, gives that of “ produce.”

But if we substitute “ produce ” or product ” for the word “income,” as found in the will, the meaning of the testator is free from obscurity, for it is then clear that he intended to give his wife one-half of the annual crops of the farm, necessarily leaving the other half to -the cropper. This interpretation of the will was adopted by the learned auditor, and we cannot see why he was not right.

Thompson was a farmer, and, judging from the language and style of his will, not a very learned one at that, and he spoke as a farmer. Before his death he had rented this farm “ on the shares,” as the agricultural term is, hence the rent which he .received, or rather, reserved, was one-half of its whole income or produce. In other words, Thompson gave one half of the entire crop as a compensation to his farmer or cropper, and the other half was his own income, and that he should, in his will, in this manner speak of the product of his farm was the most natural thing in the world. Furthermore, it appears, from the finding of the auditor, that the entire product of that farm did not in value exceed the sura of fourteen hundred dollars, and we can hardly think that the testator intended that his wife and minor children, the prim.e objects of his care, should be limited to the scant subsistence which three hundred and fifty dollars would afford them. If, indeed, he did thus act the niggard with his wife and young children, we may naturally look for some reason for such conduct; for some other object of his bounty for whom the other half of his income was reserved. But for such reason or such object we look in vain. Though making the most careful disposition of all the rest of his property, he dies intestate as to the one-half of the net income of the farm. This is incredible, From the will it is manifest that this man intended to dispose- of his whole estate, and yet, adopting tlie interpretation of the court below, we have here so considerable a portion of his estate as one-half of the annual income left undisposed of.

It is true, if the previous part of the testament is to be read as the learned judge of the Orphans’ Court has read it, then all we have to do is to shut our eyes to this omission, strange as it may appear; but as the construction put upon this instrument by the auditor not only avoids this difficulty, but, as we think, gives expression and force to the real intention of the testator, we are inclined to adopt it, and the rather that we thereby eliminate, not only this, but all other obscurities from the will.

The decree of the court below is now i-eversed and set aside, at the costs of the appellees, and the distribution recoin-mended by the auditor is approved, and his report confirmed.

Amended decree, filed June 2d 1882.

It is now ordered that the decree of this court be amended so as to read as follows ; to wit: that the decree of the court below is now reversed and set aside so far, and no further, as it surcharges the appellants with the sum of twelve hundred and forty-one dollars and thirty-seven and one-half cents, and said court is authorized to make any order necessary for the purpose of carrying this decree into full effect.

Costs to be paid by the appellees.