Weyerbach v. Weyerbach , 1840 Pa. LEXIS 254 ( 1840 )

The opinion of the Court was delivered by

Sergeant, J.

The testator by his will devises to his son Henry in fee, all his lands and plantation in Springfield township, subject to the payment and privileges thereinafter set forth. He then bequeaths specific legacies of horses to Henry and to Peter, respectively, and to them equally his gears, ploughs and harrows and farming utensils. He then orders his stock of cattle, household goods and furniture (except a cow to his wife) to be sold, and the money, after paying the expenses of administration and all his debts, to be equally divided among his four children, except two beds to Henry and Peter. Pie then gave various pecuniary legacies to his four children, (excepting Henry) amounting altogether to twelve hundred and seventy-two pounds, twelve shillings and three pence. He next orders Henry to pay these legacies at periods fixed in the will. He then gives to his wife the back room in the house, and other provisions for her personal use, to be furnished by Henry, and his bees, and the interest of two hundred pound a year during her natural life, which is to remain on his real estate during her life, and the interest to be paid by Henry. The testator then says, “ as there will remain the sum of twenty seven pounds, seven shillings and nine-pence,” of the value which his said son was to pay out of the lands after paying the above legacies, he orders it shall go with the residue and remainder of his estate not therein devised, to be equally divided between his sons and daughters after the decease of his wife.

The wife is. dead, and the plaintiff, one of the four, claims his portion of this two hundred pounds, contending'that the defendant Henry is bound to pay the principal sum among the children, now that the wife is deceased. There seems however to be no ground in the will for holding that this sum was to be paid over by the defendant, or that he was chargeable with the interest of it longer than during the life of the widow. It is only to the widow that' the benefit of it is given: it is not given after her death: and there is nothing from which it can be plainly concluded that -it was the intention of the testator it should be chargeable afterwards. If it appear ed by th,e will what was the sum Henry was to pay for the land, we might then argue as to the intention of the testator on the subject. But of this we know nothing more than that £27 7s. 9d. remained after adding up the legacies. We are unable to say whether the testator comprehended the two hundred pounds in the sum referred to, or not. Then it will not pass as “ the residue and remainder not therein devised;” because the two hundred pounds does not appear to be a part of the testator’s estate, but is a charge ■on Henry for the widow’s life. Besides which, the words ‘ residue and remainder’ would be satisfied by bonds and notes to the value of three hundred pounds, not taentioned in the will. On the whole, we see nothing but conjecture to go upon in holding the defendant liable, and that conjecture of an obscure and doubtful kind. To entitle a claimant to a legacy it must be granted by express words, or by probable implication.

Judgment for the plaintiff below reversed; and judgment for the defendant below.