Underwood's Appeal , 1877 Pa. LEXIS 242 ( 1877 )

The judgment of the Supreme Court was entered October 29th 1877,

Pee Curiam.

— When John Freeman came to make his will he declared his desire to dispose of all the property which it had pleased God to bless him with. He did not intend to die intestate. He first of all gave his wife a life-estate in certain real estate, and in the stock in question, and two thousand dollars in cash and all his household and kitchen furniture. What did he do with the remainder of his property ? He says : “ In regard to the residue of my estate, real and personal, which may remain after satisfying the above devises and bequests,” and after payment of debts, “the same shall descend and be divided in the same manner and proportions, as is directed by the laws of Pennsylvania in cases of intestacy, saving, however, my wife’s interest therein.” The first thought which strikes the mind is, what did John Freeman understand himself as the residue of his estate, real and personal, remaining after satisfying the devises and bequests to his wife and payment of his debts ? The next thought is, what interest of his wife therein did he intend to save ? He had other estate, real and personal, which must be disposed of immediately after his death, and while his wife was yet living, and this he intended and said should go in the channel of the law. He clearly intended to save his wife’s interest in this property, and hence, he said, “ it being my express intention that the foregoing devises and bequests shall not be in lieu of her interest, but in addition to and independent thereof.” This interest — that which he intended should be saved to her, was clearly the interest of a living wife, not one who is dead. The devises and bequests to her were expressly, for life, and for the whole property thus willed to her, and, being for life, there was nothing remaining thereof to be saved to her as a living wife; nor was there a necessity for saving it, because she had the whole of it to be enjoyed so long as enjoyment was capable, whereas her widow’s interest would have been On e-half only.

■ In the mind of the testator it is evident that a post mortem enjoyment of a part of that of which he had given her the whole for life, was not likely to be present. When she died to whom would he suppose it would go ? Not to herself, for the period of her enjoyment having ceased by the express terms of his will he would naturally believe the remainder would then go to the only persons in being to take it, viz.: to his own heirs or successors. The real and personal estate he gave to her were given in the same breath, for the same term, and manifestly were intended to go together to her, so long as she could enjoy them herself, while his main thought was that the intestate clause would carry all estate not given to her to his own heirs and not into a strange line of distribution. When she died the realty manifestly would go to his own heirs, not to hers, and the same intent which directed the whole of the stock to her life-long enjoyment, manifestly intended it to go when she would no longer enjoy it, to those of his own blood. At her death she was no longer wife or widow, and she had neither wife nor widow’s interest to be saved in these devises and bequests to her. They had served the express purpose of the will, and his intent to carry all he had not given to her to his own blood, must prevail, instead of finding an intestacy of one-half of the stock to carry it into a new line. It seems to be clear, therefore, that a remainder in the stock which arose only at her death, when she personally ceased to be able to take at all, was not a residue of property in which her interest as a living widow was intended to be saved; and that which the testator did save, over and above and after satisfying the devises and bequests to her and his debts, was that interest which she, as a living widow, could take in other property.

Decree affirmed, with costs to be paid by the appellant, and the appeal dismissed.