Sloan's Appeal , 168 Pa. 422 ( 1895 )

SLOAN’S APPEAL.

Opinion by

Mr. Justice Williams,

The appellant is one of three residuary legatees under the will of James Watt. The testator made two specific gifts of real estate and several pecuniary legacies amounting in the aggregate to about one hundred thousand dollars. He then gave all the “ rest, residue and remainder ” of his estate, real and personal, to his three sisters, share and share alike. The personal estate is not sufficient to pay the legacies, and the first question raised by this appeal is over the liability of the real' estate for the deficiency. The court below rightly held that the blending of the real and personal estate in the residuary clause bound the real estate for the payment of the legacies by implication, since “ the residue and remainder ” can only be ascertained after the payment of the debts, legacies, and expenses. This has been uniformly held in this state: Hassenclever et al. v. Tucker, 2 Binn. 525; Brisben’s Appeal, 70 Pa. 405; Davis’s Appeal, 83 Pa. 348. The testator died in 1886. His estate was immediately involved in litigation with one o£ the legatees who claimed to be his widow, and this claim was not finally disposed of until 1894, when a compromise was effected and the claim withdrawn. Pending this litigation the executors were unable to realize more than four per cent in income from the estate. The legatees claim interest at the rate of six per cent on their unpaid legacies and the appellant contends that they ought to receive no more than the estate has actually earned. The learned court below awarded interest at the legal rate. We do not see how it could have done otherwise. After the legacies became due and payable they were matured obligations against the estate, and bore interest, as any other liquidated demands would do at the rate fixed by law. The estate might have consisted of unimproved city property producing no income whatever. In that event, if the contention of the appellant is sound, the legacies would have borne no interest no matter how long they were withheld. It was doubtless to the advantage of the legatees that the claim of the alleged widow should be adjusted, and they may have acquiesced in what seemed a necessary delay in the settlement of the estate, but unless they agree to forego interest or to accept a less rate than that fixed by law, they were entitled to demand payment of principal and interest as soon as it was practicable for the executors to make it. The residuary legatees are in no position to complain, for the estate is charged with the payment of the debts and the pecuniary legacies first, and not until this is done is the residue ascertained or the extent of their interest in the estate determinable. The remaining question raised by the assignments of error is over the effect of the codicil upon the bequest to the Presbyterian Orphanage. The will was executed on the third day of January, 1885, and contained the following: “ Item (14). I give and bequeath to the Presbyterian Orphanage in the State of Pennsylvania the sum of seven thousand dollars to build a cottage for a school, and to be named the Findlay Highland Home.” Some fifteen months later, on the 12th day of April, 1886, he executed a codicil, the sole purpose of which was to postpone the time when the money should be payable to the Orphanage, so that the interest upon five thousand dollars thereof should be payable to Jacob Michael while he lived, and the interest upon the remaining two thousand dollars thereof should be paid to Josephine Holbach, widow, during her natural life, and the principal sum should remain invested pending these lives. For the purpose of making this change the testator made the Pennsylvania Company for the Insurance of Lives and Granting Annuities a trustee, charged with the investment of the money and the payment of the interest to the annuitants until their respective deaths, and thereupon to pay over the respective sums held for the benefit of the deceased annuitants to the Presbyterian Orphanage for the purposes named in the will. The subject is introduced into the codicil by the words: “I hereby annul and revoke the bequest to the Presbyterian Orphanage in the State of Pennsylvania,” and then follow immediately the words “and instead thereof I give and bequeath,” to the trustee, for the purposes already stated, viz, for investment and payment of interest to the annuitants during the life of each and then for the payment of the principal over to the Orphanage “ to build or aid in building said cottage for a school to be named the Findlay Highland Home.” Within one calendar month after the execution of the codicil the testator died and the position is now taken that the bequest to the Orphanage is void under the act of 1855. The contention is that the bequest was revoked by the codicil, and the codicil defeated by the statute, so that the seven thousand dollars the testator intended for the construction of the Findlay Highland Home must now go to the residuary legatees. Whether this is so or not depends on the testator’s intention. His intention is to be gathered from the codicil as a whole read in the light of the original bequest. Looking at the bequest we find the testator had given the Orphanage the sum of seven thousand dollars to be used for a specific purpose, viz, the erection of a cottage to be used as a school building and to be called by the name of the Findlay Highland Home. This would have been payable at the end of one year after his own death. The codicil gives the same sum of money, for the same purpose, to be paid on the death of the annuitants. What the testator did, and all that he intended to do, was to change the time for the payment of the bequest so as to give the interest to the persons named in the codicil while they lived. This is not a revocation. The fact that the testator called it by that name does not make it so. Revoke means to recall, to take back, to repeal. Annul means to abrogate, to make void. The codicil did not recall or make void the bequest in any particular except as to the time of payment, and this it changed. It left the donee, the gift, and the purpose to which it was to be applied unchanged. If the codicil did not revoke the bequest theii the act of 1855 has no application, and the bequest stands as originally made, changed only as to the time for paji-ment. But again, the testator says that the codicil is to be “instead of” the bequest in the body of the will. This expression excludes the idea of revocation in its technical sense, and is equivalent to a declaration that in such particulars as the codicil differs from the bequest it is to take the place of, or to be instead of, the bequest. 1 Jarman on Wills, 178, states the rule to be that the words “instead of,” used in a codicil, are held to mean “instead of so much only as is incompatible with the codicil;” and cites several English cases in support of his statement. The codicil is incompatible with the bequest in nothing except the time of payment, and it therefore takes the place of the bequest, or stands instead of it, only in that particular. What the codicil really accomplishes is to provide a small life annuity for two of the testator’s friends by withholding the bequest from the Orphanage during their lives, that the interest upon it may be paid to them in the meantime. It really diminishes the value of the gift to the Orphanage, for the benefit of the annuitants, and so falls within the purview of the rule declared in Carl’s Appeal, 106 Pa. 635.

The orphans’ court made no mistake in dealing with this question and the decree appealed from is now affirmed. The costs of this appeal to be paid by the appellants.