Estate of Jacobs ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

The question here is, whether the real estate of the testatrix passed under the residuary clause of her will. At the time it was executed her property consisted only of personal estate. At the time of her death she was seised of real estate amounting in value to nearly as much as her personal estate. After giving several pecuniary legacies, and one or more specific legacies, she disposed of her residuary estate as follows : “ The remainder and residue of my money I give and bequeath to the Hospital of the Protestant Church in Philadelphia.” There is no mention of real estate in the will, which may be accounted for by the fact, before stated, that when she executed it she owned none; nor did she for some years thereafter.

There are two funds for distribution; the one arising from the conversion of the personal property, and the other from the sale of the real estate. The latter was claimed for the heirs at law, upon the ground that it did not pass by the will, and that as to such real estate the testatrix died intestate. It is further to be observed that at the time the will was made she had sufficient personal estate to pay all the legacies, but that, by reason of her purchase of the real estate, the personal estate was so much diminished that it will only pay about fifty per cent of such legacies.

It was said by Justice Rogers in Bender v. Dietrick, 7 W. & S. 284: “ It is a maxim which applies here, as well as in England, that an heir at law can only be disinherited by express devise or necessary implication; and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed.” This is the rule which must govern this case. There are two things which can be gathered from this will with reasonable certainty. They are: (a) That the testatrix did not intend to die intestate as to any portion of her estate ; and (5) that she did not intend her heirs at law to take any benefit under her will, or to have any share of her estate. The first proposition appears from the fact that she disposed of all the estate which she possessed at the time the will was made, the residuary clause being sufficient to carry all that remained after payment of the legacies. The second proposition is manifest from the fact that she excluded her heirs by the terms of her will from any participation in her estate, excepting in so far as she has given them small pecuniary legacies.

What, then, did the testatrix intend by the ■ residuary bequest of the “remainder and residue of my money?” The word “ money,” literally, means cash; and, if we adopt this interpretation, nothing passed by this clause. It was conceded, however, that this word was the equivalent of property. It was contended by the appellant that it included only moneyed securities, and perhaps other personal estate. That the word “ money ” is popularly known and used as indicating property of every description is well known. Thus, it is very common to refer to a person as a “ moneyed man ” because of his large possessions. Yet those possessions may consist exclusively of real estate. It appears very plain to us that this testatrix used the word “ money ” in its popular sense as the equivalent of property, and that she intended all her estate to pass by the residuary clause. She knew of what her estate consisted when she made her will. She knew it would satisfy all the pecuniary legacies, and leave a small residue; and if we construe the will as of the time of her death, it is most unlikely she intended the legacies she had given to those who were evidently the first objects of her bounty, should be cut down by one half in favor of ber heirs at law whom she never intended to derive any benefit from her estate. We are not considering the case of an attempt to charge real estate because of a deficiency of the personal estate to pay the legacies, and where the same are not charged upon the land. Were such the case, a discussion of some of the authorities cited might become necessary. On the contrary, we are dealing with the question of tbe intent of the testatrix to pass ber entire estate under the name of money. A careful consideration of tbe will, gathered from within its four comers, leaves no doubt in our minds that she intended all her property to pass by tbe residuary clause, and to disinherit her heirs at law.

The decree is affirmed, and the appeal dismissed, at the costs of the appellants.