Gilbert's Appeal , 1878 Pa. LEXIS 252 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

James R. Tan*, Sr., by his will dated the 13th day of December 1864, devised to his son, James R. Tarr, Jr., a tract of land described in the proceedings for the sheriff’s sale as containing seventy-four acres, more or less. The following are the terms of the gift: “I give and bequeath the same to my son, James R. Tarr, at thirty-three dollars per acre, and the proceeds thereof to be divided into eight equal shares, including his own, and distributed equally among my sons and daughters,” seven of whom, in addition to the devisee, • the testator then mentioned. Two other pieces of land were then given to his daughter, Rose Husband, and another son, Melker Tarr, both at the valuation of thirty dollars per acre. The executors Avero required to rent the real estate until the debts of the testator should be paid, and possession by the devisees Avas postponed until such payment should be made. Some lots of land in and adjoining the village of Bethany, and his household furniture, coavs, hogs and sheep, “just as it now is,” in the language of the will, were given to the widow, Mary Tarr, during her life, and at her death, a sale was ordered of all that property, the proceeds to be distributed amongst the children of the testator. IrAfin W. Tarr, a son, AA'as to receive twenty-five dollars; a daughter, Ann Eliza Tarr, one hundred dollars ; and another daughter, Mary Ann Buttermore, tAventy-five dollars, The residue was to be divdded amongst his eight other children. The concluding clause of the Avill gave “ the remainder” of the testator’s estate to nine of his children, eight of them being those designated to receive the proceeds of the real estate, and the ninth being Mrs. Mary Ann Buttermore.

It is apparent that the devises and bequests preceding the concluding gift of “ the remainder,” had embraced the entire estate of Mr. Tarr. Directions for sale and distribution had been given . of the real and personal property which Mrs. Tarr was to take for life. That there was no other personal fund is clear from the provision for the payment of debts from rents afterwards to accrue. The residuary clause could have application, therefore, to nothing except the lands devised to James R. and Melker Tarr and Mrs. Husband, in the event that either of them should refuse to accept the devise in his or her favor at the valuation fixed. It is true that Mrs. Buttermore was brought in to share in the property in such an event, but it is obvious, nevertheless, that the clause must have been designed “to have the operation attributed to it, or it could have no operation at all.

It was the plain purpose of this will to furnish to the legatees for the amount of the valuation of the land devised to James R. Tarr, Jr., the security of the land itself. He was to take it at “ thirty-three dollars per acre,” and the “proceeds” were to be divided and distributed. A specified sum of money was not to be paid to each legatee — each was to have a share of the purchase-money, which was to be “the proceeds” of the land. While the order, amounts and periods of payments after the devisee should obtain possession were defined, yet the language of the will makes this a different case from those where a gift of land to a child has been accompanied or followed by a direction that he should pay certain specified and enumerated legacies. Such a devise, without more, if accepted by the devisee, would make him personally liable, but a charge upon the land would not be created. But where, from the entire body of a will, an intention is manifested on the part of the testator to make the property the security of the legatees, it will become subject to the charge.

While, in order to make legacies a charge on land, it must be found that- such was the testator’s intention, still it is not necessary that its ascertainment should rest on direct expression. It is enough if the intention appears by natural and obvious implication from the provisions of the'will. Ho form of words is necessary to produce the effect, and where the intent is manifest, courts are bound to carry it into execution: Gibson, C. J., in Ripple v. Ripple, 1 Rawle 386. There a testator had devised three-fourths of a tract of land to his son, followed by this direction: “My son Philip is to keep and provide for my beloved wife, and my eldest daughters, Catharine and Elizabeth, during their natural lives.” It was held, that although land devised is not expressly charged with the maintenance of infirm children of the testator, yet if such an intention can be clearly collected from all the parts of the will, considered in reference to the testator’s circumstances, the charge will attach upon the land, and follow it into the hands of subsequent purchasers. In Hoover v. Hoover, 5 Barr 351, a devise by John Hoover to his son David, “ yielding and paying out of the same $7250, in instalments of $700,” was held to charge the land; and Bell, J., said, that “in a will, no precise form of words is necessary to create a condition. Any expression denoting such an intention will have that effect.” Thus a devise “ to A., he paying,” or “he to pay 500Z. within one month after my decease,” would be a condition for breach of which the heir might enter: 2 Powell on Devises 251. Where, as here, the devisee was to take the land “ at thirty-three dollars per acre,” and the legacies were to consist of “the proceeds” derivable out of it, for the distribution of which provision was made, the condition that the land should be made subject to the amount of the valuation would seem to be a natural and necessary implication.

At the argument, the counsel for the appellees relied on the authority of Haclcadorn’s Appeal, 1 Jones 86, and Wright’s Appeal, 2 Id. 256. In the first of these cases, the testator, after devising different parcels of land to his sons, directed the selection of appraisers, the valuation of the lands, and payments out of the valuation to his daughters in order to equalize the shares of his sons and daughters, with the qualification that the share of each son should be twenty-five dollars more than that of either of the daughters. The will contained this exceptional provision: “ The divide that my daughters may have received out of the proceeds of my personal estate to be counted to them out of their share.” The payments, besides, •were to be made by the sons whose lots should be most valuable. Of course, no land could be charged, for no land could be designated. The properties, the devisees of which were to become liable, could only be ascertained by the appraisement to be made after the testator’s death. In Wright’s Appeal, all that is shown in regard to the will was the statement by the reporter that Carson had devised land to his son Thomas ; that if he chose to accept, he was to pay $1700 to different persons; and that he accepted. In a contest between his alienee and one of the legatees, it was held that the land was not charged. In the later case of Hart v. Homiller, 8 Harris 248, after giving his son Samuel the use of certain real estate during the life or widowhood of his wife, at a yearly rent of $50, to be paid to the wife, the testator directed that upon her death or marriage, a division of the property should be made, and thereupon devised to Samuel and his heirs and assigns the store he then occupied, and the lot of ground back as far as the slaughter-house, at a valuation to be made by six respectable bricklayers and carpenters. This valuation was included in the residue of the estate, which was given to the testator’s six children, of whom Samuel was one. The interest of Samuel was sold at sheriff’s sale, and afterwards sold to Hart, under a judgment against the first purchaser. It was held that the terms of the will made the amount of the valuation a charge on the land, and that the purchaser at the sheriff’s sale held it subject to the charge. Hackadorn’s Appeal and Wright’s Appeal are precedents to govern cases presenting precisely indentical facts, but for the settlement of this litigation Hart v. Homiller, furnishes a better and safer rule.

The decree is reversed at the costs of the appellees, and it is now ordered and decreed that the fund remaining in court be applied in payment of the shares of Sarah Gilbert and Matilda Bovard, in the valuation of the land of James R. Tarr, Jr., as established by the devise to him in James R. Tarr, Sr.’s will.