Dean v. Winton , 150 Pa. 227 ( 1892 )

Opinion by

Mb,. Justice Heydrick,

It is not to be doubted that when Henry Heermans had devised the mansion house and two and one half acres of land to his wife for life, the remainder would have passed, by the general devise of the residue of his estate contained in the third paragraph of the will if there had been no other provision indicative of a different intention. But the intent of a testator is to be gathered from his entire will rather than from the terms of a particular devise, which regarded alone might be inconsistent with his testamentary scheme as a whole. Thus in Rodgers v. Rodgers, 7 Watts, 15, a subsequent general disposition of all of a testator’s property was held not to interfere with a previous specific appropriation of part of it, because from the whole will it was apparent that when making the general disposition the testator had in contemplation only the property then undisposed of. In the present case it is evident from the will considered as a whole that the testator had in his mind separated the mansion house and two and a half acres of land from the residue of his estate, and consequently that when in the third paragraph he spoke of the residue, he had not in contemplation the mansion house and its allotted grounds. It is enough that in a subsequent clause he disposed of the remainder in that property in terms different from his residuary disposition. And it is with those terms that we have chiefly to do in this case.

The testator directs that at the death of his wife the mansion house and grounds shall be equally divided among the eight children to whom the residue of the estate had been given or among the survivors of them at that time and the issue of such as then might be dead. If there had been nothing more the persons here described would have taken the remainder as tenants in common. But in the immediate context he declares: “ As the said mansion house and two acres and a half of land is not susceptible of division my will and desire is that immediately after the death of my wife the said premises shall be appraised by three judicious and disinterested men, and that the same shall be taken by such of my devisee or devisees as shall take the farm now attached to the same, securing the respective portions to those interested by bond and mortgage payable in five equal annual payments with interest.” Thus it is made clear that by the equal division directed in the preceding sentence the testator meant an equal division of the appraised value of the property, and the only question to be determined is whether in virtue of this clause, the remainder vested unconditionally in Henry Clay Heermans, upon the consummation of the partition of the residue of the real estate, by his election to take the farm mentioned.

The words of the clause quoted are not precatory as contended by the learned counsel of the appellee. They are testamentary; they sufficiently disclose the intention of the maker of the instrument in which they are contained respecting the posthumous destination of this part of his property; and that is all that is required in a will: 1 Jarman on Wills, 18. The clause is therefore a good devise of the remainder in question to that one of the testator’s children who in the partition of the residue of his real estate should take the farm from which the mansion house and grounds were temporarily severed for the convenience of the widow. Until the partition should be made and the farm taken by one of the children named the devise was necessarily contingent. But as the rules of law require the vesting of estates as soon as there is any one who can take, the remainder vested in Henry Clay Heermans upon his election to take the farm in 1846: Lantz v. Trusler, 37 Pa. 482. At this time there was certainly no condition that could be performed. The appraisement was not to be made until after the death of the widow which did not occur until 1868; and the payment of the appraised value was to be made still later. But neither appraisement nor payment to the other children of their shares was by the terms of the devise made a condition of the devisee’s tenure; and when an estate has once vested, the law will not imply a doubtful condition to defeat it: Womrath v. McCormick, 51 Pa. 504; Lantz v. Trusler, supra. It is, however, more than doubtful whether the making of the appraisement and payment of the shares of the appraised value, were intended to be conditions of the devisee’s tenure. In Hart v. Homiller, 20 Pa. 248, a similar devise was held not to be on condition that the devisee should pay the valuation, but that the valuation was simply a charge upon the land which could be enforced only in the orphans’ court. It follows that whatever remedy these plaintiffs have is in the orphans’ court. If they were not concluded by anything done they might long since have had the appraisement made under the Act of April 17, 1869, P. L. 72, and enforced payment in the manner indicated in Hart v. Homiller, 23 Pa. 39.

The judgment is reversed.