Appeal of Wetter , 36 Pitts L.J. 4 ( 1888 )

Opinion bt

Mr. Justice Sterrett :

Appellants’ contention is that the legacy of $2,000 to them, in trust for certain charitable purposes, was payable according to the provisions of the act of 1834 at the expiration of one year from testator’s death, and was not postponed, as the court below held, until after the death or marriage of his widow. This single question, presented for our consideration, must be determined from what appears to have been testator’s intention as disclosed by the provisions of his will.

After disposing of a very small portion of his estate by giving to each of two nieces the interest of $3,000, while they respectively remain single, and making specific bequests of personal property to two of his sons and a grandson respectively, the testator, in the fifth item of his will, bequeaths to his wife “all the rents, interest, and income of all the rest of his estate, real, personal, and mixed,” including the use of his “household furniture, plate, etc., for and during all the term of her widowhood;” and, in case she married again, he gives her an annuity of $2,000, payable quarterly. In the concluding sentence of same item, he gives and bequeaths “from and immediately after the decease or intermarriage of” his widow, whichever may first happen, all his residuary estate to his children, grandchildren, and.others, in the manner specified in the next succeeding twelve items of his will. . Two of these are an annuity of $150 to his brother-in-law, and $500 to Woodland Cemetery Company, for the purpose of keeping his burial lot in order.

It will be observed that these and all other residuary legacies and bequests are expressly postponed until the decease or marriage of his widow. The general testamentary scheme is thus disclosed, too clearly to admit of any doubt. It evidently contemplates a gift of the entire income of the estate to his wife during widowhood, and the postponement of all legacies except the interest of $3,000, given temporarily to two of his nieces.

If appellants’ construction prevails, it will not only give their legacy precedence to the general legacies and bequests to his children and others, but it will also materially lessen the income of his wife, who is evidently the primary object of testator’s bounty. This would be contrary to the well-established principle of construction that a clear gift cannot be cut down by any subsequent words unless they show an equally dear intention. In the absence of any evidence to the contrary, the reasonable presumption is that, in making the codicil giving the legacy in question to appellants, the testator had in view the same testamentaiy scheme that induced him to postpone legacies and bequests to his children and others in the body of the will. • In-bleed, it is'wholly improbable that he had abandoned that scheme and intended not only to cut down the gift to his wife, but also to give special precedence to appellants’ legacy.

In view of the clearly defined scheme of the testator; and in the absence of any expression indicating an intention to depart therefrom, the orphans’ court was- right in holding that testator intended to place the legacy in question on thé same plane of' equality with those given to his children in the body of his will

Decree affirmed and appeal dismissed, at the costs of appellants.