Estate of Schmidt , 185 Pa. 579 ( 1898 )

Opinion by

Mb. Justice Mitchell,

Testator devised his whole estate to his widow for life, and after her death to his two children, appellant and Henry Schmidt, “ their heirs and assigns, share and share alike.” He then further devised “ Fourth. — -And in case my said (son) Henry shall die unmarried and leaving no children, I desire and bequeath his one half unto my daughter Mary Schmidt now Mary Bachman, and after her decease of my said daughter Mary I give and bequeath all the same unto her my daughter Mary’s own produced then surviving children, and it is my will and devise that as soon after my daughter Mary’s death the youngest of her children is twenty-one years of age, the whole of the property shall be sold, at public or private sale and the whole amount of purchased money shall be devited to my said daughter Mary’s then surviving children share and share alike.” The learned court below held that this clause qualified not only the devise to Henry but also the absolute interest previously given to tbe daughter, and showed the testator’s intention to be, that she should take but a life estate in one half of tbe estate, with remainder to her children, to be divided among them when the youngest attained lawful age. In this the court fell into error. The first gift was to Henry and appellant absolutely. The qualifying clause which followed referred to tbe death of Henry unmarried and without children, and upon the happening of that contingency devised “his one half” to appellant for life with remainder to her surviving children, to be sold on the youngest reaching the age of twenty-one. The manifest purpose of the clause is to dispose of Henry’s half on the specified contingency, and there is no reference in it either express or by fair implication, to the half originally given to appellant. That was given to her absolutely but the other half if Henry should die unmarried and without children, was given to her for life with remainder to her surviving children. The direction for a sale when the youngest of such children should reach the age of twenty-one, notwithstanding the use of the words “the whole of the property” must be limited to Henry’s half, passing under the contingency, not only because that is the only subject of the clause, but also because a larger application of those words would be contrary to the prior gift in absolute fee to appellant and to Henry subject to the specified contingency. The contingency has not in fact happened: Henry is still living, and all that is coming to appellant is her half under the first devise. This she is entitled to have absolutely without security.

The other assignments of error cannot be sustained. The judgments in favor of Henry were standing unimpeaehed on the records of tbe common pleas. They were not in litigation, for though a rule had been obtained to open them, it had been discharged. The common pleas had acted on the rule and tbe litigation was at an end. The orphans’ court had no authority to reopen it.

The refusal to disallow commissions to the administrator and the amount of bis counsel fee were matters which the court below considered carefully, and which were largely in their discretion. If is not claimed that the counsel fee is more than the counsel was entitled to, but that the services were rendered principally on behalf of the administrator personally as a creditor, and not on behalf of the estate. The court below had a better opportunity than we have to investigate and determine such matters, and we see no reason to doubt the correctness of their conclusion.

So much of the decree as required security to be entered by appellant is reversed, and distribution directed to be made to her absolutely. Costs of this appeal to be paid by appellee, Henry Schmidt.