Appeal of Dodge , 1884 Pa. LEXIS 178 ( 1884 )

Mr. Justice Sterrett

delivered the opinion of the court,

This contention hinges on the construction of the hereinafter quoted clause in the will of Mrs. Letitia G. Ryan, who died, leaving her husband, a son and two daughters surviving her. The testatrix devised certain real estate to her brother Samuel White, in trust to permit her husband to occupy or rent the same, “ and to receive, take, hold and enjoy the rents, issues, profits and income thereof to his own use absolutely,” during life; and, after his decease, “one third of the aforesaid rents, issues, profits and income to bo paid to Caroline E. Dodge, one third to be paid to Sarah Virginia Blake, and the remaining third to be paid to Edward W. Ryan, for the term of their natural lives, respectively, and from and after their decease to vest absolutely in their heirs forever.”

The passive trust in favor of testatrix’s husband having terminated at his decease, the active trust for the benefit of her son and daughters commenced and continued until the death of her son Edward W. Ryan, who died in January, 1883, intestate and without issue, leaving a wife, Amelia Ryan, the appellee, surviving him. Letters of administration on his estate wore granted to her in the State of Oregon, and, as such administratrix, she received the arrears of income due her husband up to the date of his decease. She then claimed, as his heir, under the clause of the will above quoted, one third of the income since accrued, and, from the decree in her favor, this appeal was taken by her sisters-in-law.

The devise to the trustee was coupled with a qualified power of sale, which was never executed;' but the land devised was sold on a mortgage, the lien of which ante-dated the title of testatrix. After payment of the mortgage debt out of the proceeds of sale, the residue was paid to the trustee, and thus became the corpus of the trust from which the income for distribution was realized. In view of the facts, it cannot be doubted that the fund represents real estate, and hence it must be distributed accordingly.

The question thus presented by the record is, whether, under Mrs. Ryan’s will, the portion in which her son Edward had a beneficial interest, during life, now goes to his widow or to his sisters. In other words, is the widow the “heir” of her husband, or are the appellants his “heirs,” according to the true intent and meaning of the will ? If the fund for distribution were personalty the widow would perhaps be entitled to participate therein; but inasmuch as it bears the impress of realty, the one third in which Edward had an equitable life interest was given by his mother’s will to his “ heirs forever.” In the devise over of the remainder in fee, to take effect immediately upon the expiration of the equitable life interests respectively, the testatrix used the technical word “ heirs,” which, in a will, is to be understood in its legal or technical, and not in its popular sense, unless the contrary intent is so plainly apparent that it cannot be misunderstood: Porter’s Appeal, 9 Wright, 201; Eby’s Appeal, 14 Id., 311; Tillman v. Davis et al., 95 N. Y., 17. No such intent is even suggested by the phraseology of the will in this case. There is nothing in the language of the testatrix to warrant the belief that she intended to use the word “ heirs ” in any other than its well settled legal signification, meaning those who, upon Edward’s decease intestate, would take immediately from him an heritable estate. The heirs of a decedent are those of his kindred upon whom the law, immediately upon his decease, casts the estate in real property, and the estate, so descending to the heir, is called the inheritance: 2 Minor’s Inst., 452; 2 Bl. Com., 201. It is conceded that at common law neither the husband nor the wife could be heir to the other; and, while our Intestate Act has made some changes in the interest to which a widow is entitled in the estate of her deceased husband, she is not in any proper sense of the word recognized as his heir, except, perhaps, in the case of his dying without “known heirs or kindred competent” to take, in which event alone an estate of inheritance is vested in the widow under the tenth section of the Act. In all other contingencies her interest in her husband’s estate is unlike that of an heir. "While she acquires an interest or estate in the land, and not a mere lien thereon, that interest is of a special and peculiar nature, essentially different from the estate of inheritance which the law casts upon the heir.

For reasons thus briefly suggested, we think the conclusions of the learned President of the Orphans’ Court, sitting as auditing Judge, are correct: that under,his mother’s will, Edward W. Ryan had merely an equitable life interest, and immediately upon his decease the remainder in fee passed absolutely to his “heirs,” who, according to the true intent and meaning of the will, are his two surviving sisters.

The decree of the Orphans’ Court is reversed at the costs of the appellee; and it is now considered and adjudged that the decree of the auditing Judge be affirmed.