Appeal of Drennan , 118 Pa. 176 ( 1888 )

Opinion,

Mr. Justice Paxson :

That portion of the will of William M. Drennan which gives rise to the present controversy is as follows:

“ I will and bequeath all my real estate and personal property. thereon to my beloved wife, Margaret, and my son, Thomas Henry, during my wife’s natural life, by their complying with the following bequests, viz.: That they agree to give to each of my daughters, Isabella Jane, Esther Mary, and Emily D., now at home, an outfit equal to my daughter Martha Powers, supposed to be worth about three hundred dollars, at such times as they may wish to leave home, with the express understanding that they may remain at home as' now, so long as they may desire. At the decease of my wife, I will the southeast side of my farm.....with all the buildings thereon, to my son Thomas Henry. I give and bequeath also, after my wife’s decease, the west side of my farm. .... to my daughters.”

The personal property referred to consisted of the furniture in the testator’s house, and the stock, farming implements, and produce of his farm. This personal property was included in the inventory and appraised at $1,475.55.

Thomas H. Drennan, who was executor of the will, filed an account in 1858, in which he charged himself with the amount of the inventory, including the personal property above mentioned, and claimed . credit, inter alia, as follows: “ Margaret Drennan, as directed in will, $865.81. Accountant retains to himself, $865.31.” This balanced the account. It is admitted that these credits represent the personal property on the farm. The accountant took Mrs. Drennan’s receipt for the amount credited to her as above, but in fact never paid the same to her in cash, nor delivered the personal property in specie. He took into his exclusive possession and control the farming implements and stock, and retained the same until his mother’s death in 1882. The household furniture was used in common by the accountant, his mother, and sisters, until it was, excepting a few articles, worn out. Of the three daughters mentioned in the will as being at home, one married, received her outfit, and left the fall after her father’s death, and another in 1862; and the third remains unmarried in the old homestead.

In 1885, three of the sisters of the accountant presented their petition to the Orphans’ Court, praying for a citation upon the accountant to show cause why he should not file an account of the personal estate of said decedent, and make distribution thereof, etc. The personal estate referred to was the personal property on the farm.

The Orphans’ Court ordered an account as prayed for, and in obedience thereto the accountant filed an account, in which he charged himself with the appraised value of said personal property, and claimed credit for divers matters, including stock, furniture, and farming implements, etc., consumed by the family and worn out in their use, and showing a balance in his favor of $675.33. Upon exceptions to his account the court disallowed all the credits excepting three items, aggregating $139.47, consisting of counsel fees, commissions, and costs of filing the account, leaving a balance for distribution of $1,490.06. The effect of this was to compel the accountant to pay for the articles consumed and worn out by his mother and family, a portion of whom were these appellees, during the quarter of a century between the death of the testator and of his widow. This result was reached by holding, (1) that there was an intestacy as to the personal property on the farm, and (2) that the confirmation of the first account of the executor was conclusive of his conversion of said personal property.

In the view we take of the case, an extended discussion of the second proposition is unnecessary. The accountant doubtless thought that the personal property on the farm was given to his mother and himself absolutely. If we concede he was mistaken in this, the mistake was an honest one. There was no evidence or even allegation of fraud. It would be a harsh rule to hold him after all these years, and under the circumstances of this case, to pay for all this consumed or worn out property at the value it was appraised at thirty years ago. There is nothing which requires an Orphans’ Court to make an unjust decree. No court is less bound by rigid rules. It has full power to do equity in all cases. Our own duty in this respect is declared by the 4th section of the act of 'April 14, 1835, P. L. 276, as follows: “The Supreme Court of this commonwealth shall, in all cases of appeal from the definitive sentence or decree of the Orphans’ Court, hear and determine the same, as to right and justice may belong,” etc.

But there is a more serious difficulty in the way of the appellees. A careful examination of the entire will of Wm. M. Drennan has led us to the conclusion that the testator intended the accountant and his mother to take the personal property on the farm absolutely. It is the general rule in this state that the gift of personal property for life, without any limitation over, and without the intervention of a trustee, is an absolute gift: Merkel’s Appeal, 109 Pa. 235. It is true the testator blends the real and personal estate in making the gift, and the real estate being given only for life, it creates a presumption that he intended giving a life estate only in the personalty: Morrison v. Semple, 6 Binn. 98. It is, however, but a presumption, and not conclusive of the-testator’s intent. We think a contrary intent can be gathered from the will.

We cannot presume that he intended to die intestate. After providing for the payment of his debts, he proceeds to dispose of “ the residue ” of his estate. The farm, after his wife’s death, is divided between the accountant and his sisters. All his money at interest is given to his daughters. This in terms disposes of all his estate, except the personal property on the farm. What did he intend to do with this ?

The answer to' this question is not difficult. It appears to us that he intended to provide a home for his widow, his sister Isabella, and his three unmarried daughters during the lifetime of his wife. In addition, he desired each of the three daughters remaining at home to have an outfit equal to that of Martha Powers, his married daughter, which he states was about three hundred dollars. To secure these objects he inserted in his will the clause referred to. This secured the farm as a home for the family during his wife’s life. The gift of the stock and farming implements, with the household goods, secured their comfort in the home and the means by which the faina could be made productive and the family supported. It is possible that the blending of the personal with the real estate may have been an oversight. That he could have intended to limit the use of the personal estate to the life of his wife is improbable. Some of it was consumable in its nature, and as to such property there is no responsibility to remaindermen. There can be no such thing as a life estate in a bag of flour or a barrel of pork. It is hardly likely he contemplated haying his son surcharged with this property after much of it was consumed -or worn out. Moreover, a mere estate for the life of the widow in the personal property might have seriously interfered with a part of the testator’s scheme. The devise referred to was. upon the condition that the appellant was to give each of his three sisters an outfit amounting in the aggregate to about 1900. Out of what fund was this charge to be paid ? The personal property was the primary fund. The money at interest had all been given to the daughters. There was nothing left but the personal property on the farm. If the widow had died within one year of the testator, the appellant would have had no fund in his hands out of which he could have furnished an outfit for his sisters; yet by the acceptance of the' devise he would have been hable. We are very sure the testator never intended to lay this burden as a personal charge upon his son. On the contrary, he provided the means of payment by giving this personal property to his wife and son. We have no doubt he intended them to have it absolutely.

It was error, therefore, to require the accountant to file a further account. He had nothing in his hands for distribution. The costs of that proceeding, as well as of this appeal, should be paid by the appellees.

Decree reversed, and all proceedings subsequent to the confirmation of the first account are set aside at the costs of the appellees.