Appeal of the Trustees of the University , 1881 Pa. LEXIS 59 ( 1881 )

Mr. Justice Trunkey

delivered the opinion of the Court, February 28th 1881.

Whether Dr. Wood was legally bound to pay the University of Pennsylvania the sum of $2500 annually, during his life, is unnecessary to determine. Did he contract for such payments to be made after his death? He proposed to appropriate out of his income the annual sum of $2500, to be applied by the trustees to the support of an auxiliary faculty of professors in the medical department, stating he did so with some diffidence, as he had no right to suppose that the board could “have so much confidence in his disinterestedness or stability of purpose, as to justify them in commencing an enterprise, any misdirection or failure of which might in some measure compromise the dignity of the board,” that he made “ the appropriation conditional on his future ability to maintain it without material personal inconvenience and pledged himself, should they accept, that no trifling cause should interfere with its due fulfilment on his part. The trustees gratefully accepted, organized the faculty, and provided that the professors be appointed for one year, and reappointed annually during satisfactory service, so long as the plan for the establishment of the auxiliary faculty of medicine now adopted shall continue in operation.” They elected other professors for an indefinite period, but for this auxiliary faculty for one year. They understood that he intended himself to judge of his future ability to make the annual payments without inconvenience. His purpose was to make such payments. The trustees believed he would; and he did during his life. Both parties acted in accord with the promise contained in the proposition; but not a word in the proposition or resolutions tend to establish an agreement that he would provide for the payment of that sum, or any other, annually after his decease.

The nature of Dr. Wood’s pledge is shown by a written evidence, and that is the “engagement” and'“agreement” referred to in his will. If nude or for good consideration, on its face, he was under no moral or legal obligations to provide an annuity or an endowment fund. Probably he contemploted making the university a chief beneficiary of his estate; he did not promise this, and held out no reason for the trustees to expect it, other than continuous acts of generosity. His declarations in the will are evidence of his own understanding of the -writings. In sect. 27, after reciting that the trustees established the faculty at his request, which he had aided by an annual payment, and that it is his “ desire that said faculty and professorships shall be permanently established,” he says: “ Therefore, for that purpose 1 give and bequeath unto the trustees of the University of Pennsylvania $50,000.” This reveals that the testator deemed the “establishing” and “ founding” of the faculty and professorships temporary, and that he desired they should bo permanent. To that end he made the bequest. Here is his first expression for a permanent endowment, not in performance of an obligation, but to accomplish a desire. In sect. 16, of a codicil of same date as the will, he enjoined his executors to pay no legacies except those less than $5000, and except also the payments necessary to continue those annual payments which he had for some years m.ade by agreement with certain institutions, in the interval before getting the principal of their legacies, until the accomplishment of his directions for putting a tract of land under cranberry culture. He says, in sect. 80 of the will, “ having heretofore engaged to pay and paid to the trustees” $2500 a year, I direct my executors to continue such payments until said legacy shall be paid, which will be without deduction from the legacy. The words “ agreement” and “ engaged to pay and paid,” following sect. 27, would fairly apply to the proposition for the temporary establishment of the faculty, and the direction to continue the yearly payments, until the legacy of $50,000 shall be paid, is a bounty in furtherance of the permanent establishment he desired. It seems very clear that the testator was not bound by a contract for such payments to be continued after his decease.

Neither the acts of-the testator in his lifetime, nor the declarations in his will, recognise equitable rights in the appellant to any part of his estate standing in his name. He paid all he promised; he gives legacies for specified purposes. We have carefully considered the able argument of appellant on this point, sound in its statement of the law, but we fail to discover any evidence of property held in trust by the testator for the university, or that the university had an equitable interest in any property held in the testator’s name.

The rule is, that where there is deficiency after payment of debts, expenses and specific legacies, the loss shall be borno entirely and proportionally by those pecuniary legacies which are in their nature general. A general legacy to a volunteer will not bo entitled to any exemption from abatement, on the ground of its being applied to any particular object or purpose, as where the bequest is to a wife or child, or to a charity. But if there be any valuable consideration for the testamentary gift, or the relinquishment of any right or interest, such legacy will be entitled to preference of payment over other general legacies which are mere bounties. An annuity charged on the personal estate is a general legacy, and in cases of deficiency all annuities and legacies abate ratably, for since they cannot ^ all be paid in full, they shall all abate ratably, on the principle of the maxim, “equality is equity” or “ equity delighteth in equality.” This rule is subject to exceptions, for there are cases, where some annuities and legacies are to be paid in priority to others; but the onus lies on the party seeking priority to make out that such priority was intended by clear and conclusive proof. In absence of such proof, the testator must be deemed to have considered that his estate would be sufficient, and, consequently, not to have thought it necessary to provide against a deficiency by giving priority to some of the objects of his bounty. If the chances of deficiency are anticipated and provided for by the terms of the will then the directions of the testator will govern. It is always a question of intention, and when the intent of the testator is manifest to give one general legatee priority over others that intention shall prevail. As between legacies which are in their nature mere bounties, the presumption of intended equality exists and governs, unless overcome by unequivocal evidence to the contrary. Ho priority will be allowed where the expressions of the will are ambiguous: Towle v. Swasey, 106 Mass. 100; Miller v. Huddlestone, 3 Macn. & G. 513; Attorney-General v. Hudson, 1 P. Wms. 675; Attorney-General v. Robins, 2 Id. 23; 2 Williams on Ex’rs 1364-1371.

Applying these principles to this case, the Orphans’ Court was clearly right in ruling that the legacy of ¡$50,000, and until its payment the sum of $2500 per annum, to the trustees of the auxiliary faculty, must abate ratably with, the other pecuniary legacies. It seems plain that no conclusive proof can be furnished from the language of the will of intent to give these legacies priority over others; if there be expressions which tend to favor priority they are much too ambiguous to be relied on in support of a preference. Indeed, the intention as to all pecuniary legacies is that they shall stand on. equal footing. The testator anticipated the possibility of a deficiency, and made this provision: “ Should my estate prove'deficient to pay all the legacies, then the pecuniary legacies will abate ratably” — precisely what the law would have declared had he given no such direction. He made numerous bequests to near relatives and friends, as well as to charities, and as he expressed no particular intent as to any one of the pecuniary legacies or annuities, and all are to volunteers, they must abate proportionably in accord with the general intent. We discover no sufficient evidence of an intended priority in favor of the appellant.

The second question presented is, Did the legacy of $7500 to Hannah Chamberlin lapse by reason of her death before the^testator ? This legacy is given as follows: “ I give and bequeath §7500 unto Mrs. Hannah Chamberlin, a daughter of Mrs. Willis, aforesaid; but it is my will that whatsoever amount her son David Edwards shall owe me, principal and interest, shall be taken to have been so much paid on account of said legacy, and his notes shall be handed over to her or her representatives.”

The word representatives may mean next of kin, or descendants, or executors, or administrators, according as the intention of the testator is manifested in the will. It has been held to mean the husband of a deceased legatee: Gibbons v. Fairlamb, 2 Casey 217. In all cases where it is apparent in the context of the will that a word is not used in its ordinary sense, if the intention can be ascertained, it shall govern rather than a technical definition, or the usual sense. In this will there is little room for interpretation; the testator seems to have been at no loss for an intelligent use of words. When he intended to give the interest of a sum to one for life, and at the death of the legatee the principal to his legal representatives, he said so, as in the bequest to John Garrison. If he meant a legacy should not lapse, in case of the decease of the legatee before himself, he so directed, as when he added to the bequest to John Quin, “ if he deceased to go to his children.” Evidently, he was mindful of collateral inheritance taxes, and gave certain legacies clear of taxes. He closed the codicil of even date with his will, thus: “And should any provision of my will fail by lapse or otherwise, it is my will that all dispositions so failing shall fall into and become part of the residue of my estate, and as such to vest in the residuary legatee, under the residuary clause of my will.” Surely, he contemplated the probability of lapse of some of the numerous legacies.

There is not a substitutionary word applied to the legacy of §7500 to Mrs. Chamberlin. The clause directs that her son’s indebtedness, whatsoever it may be, shall be so much paid on account of said legacy, and the notes handed to her or her representatives.

What is there in this will to show the words were not used in their usual sense ? Is it the general and particular accuracy of language in every other part ? A testator may prevent a legacy from lapsing; but to effect this object he must declare, either expressly or in terms from which it can be collected with sufficient clearness, what person or persons he intended to substitute for the legatee dying in his lifetime: 2 Williams on Ex’rs 1210. This legacy is to Mrs. Chamberlin, not to her son, or her representatives. An advancement on account of the legacy, made in her lifetime, will not prevent a lapse. We are of opinion that the terms of this will, instead of showing the testator’s intention to prevent a lapse of the legacy to Mrs. Chamberlin, in case of her death before his, show that in such event he intended said legacy, or so much of it as had not been advanced, should fall into and become a part of the residue of his estate.

So much of the decree as directs payment of money on the legacy, to Hannah Chamberlin is reversed, and record remitted for further proceedings. Costs of appeal to be paid by the executors out of moneys of the estate.