Estate of Brotzman , 133 Pa. 478 ( 1890 )

Pee Curiam:

When this case was here before: Brotzman’s App., 119 Pa. 645, it was in the equity side of the Court of Common Pleas, and we held that the proceeding should have been commenced in the Orphans’ Court, which has exclusive jurisdiction in the case of a charge upon real estate. We dismissed the bill, at the same time saying: “ Upon the merits, we are all with the learned auditor, and are of opinion the plaintiff is entitled to the sum awarded her, but as she is in the wrong court, wo cannot help her in this proceeding. The court reversed the auditor, and dismissed the bill. We are constrained, in view of what has been said, to affirm the decree, but it is without prejudice to her right to proceed under the act of 1834 in the Orphans’ Court.”

The case conies up now regularly from the Orphans’ Court, and we adhere to our former views. We do not agree with the position assumed by the appellants that the devise in the will of Joseph Brotzman was intended only for the benefit of his widow, and that the rights, if any, of his daughter Catharine, fell with the death of her mother. It is plain, from a careful examination of the whole will, that the testator intended to make a provision for Catharine so long “as she remains single and unmarried.” He makes a provision for the support of his widow, the details of which it is unnecessary to repeat, and couples it with a direction that bis daughter Catharine shall share the benefit thereof so long as she remains single and unmarried, and then adds this clause: “ In case the said devise should, in the opinion of my son Abraham and daughter Rachel and the survivor, be insufficient for the comfortable support and maintenance of my wife and daughter Catharine during said term, then I order that the sum of $100 shall be paid annually during said term to my said wife and daughter and the survivor, out of the proceeds of the rent of the ore-bed.” Here is a distinct charge upon the real estate for the benefit of both the widow and Catharine, and of the survivor of them. It was to continue for the widow diiring her widowhood, and for Catharine so long “ as she remains single and unmarried.” This is what was intended by the use of the words “ during said term.” Why should the testator cut off • Catharine’s support at the death of the mother? The plain intent of the will is to provide for the one during widowhood, and for the other so long as she remained single. In this respect the case differs essentially from Kearns v. Kearns, 107 Pa. 575.

There is no room to doubt that the devise referred to for the support of the widow and Catharine did become inadequate for the comfortable support and maintenance of Catharine. It was made so, in part, at least, by the conduct of the testator’s sons. The homestead privileges given by the will were rendered fruitless, to a great extent, by the sale of the property in violation of the terms of the will. Abraham Brotzman, one of the executors, died in 1860. Rachel Riehl, the surviving executrix, and one of the respondents in this proceeding, who, by the terms of the will, is made the judge of the sufficiency of the devise for Catharine’s support, makes answer as follows : “ I state and aver, further, that my opinion of the insufficiency of said devise for said comfortable support and maintenance, and of the necessity of such yearly payments, was known to respondent, whose land was charged with payment of the same, at the time of said first payment, and that he, and his representatives since his decease, have known of the same, and that complaints were then made, and have since continued to be made by complainant, of her need for such yearly payments by reason of the insufficiency of said devise for her (Catharine’s) comfortable support and maintenance, repeatedly made by her therefor, and that then, and since, I have repeatedly asked and demanded of respondents that said yearly payments be made promptly, as provided by said will.” The neglect and refusal of the respondents to make these payments are the more inexcusable from the fact that the ore-beds, upon which this sum was charged, were remunerative, and amply sufficient to meet it.

No error is apparent in the allowance of interest on the arrears of the annuity. The principal sums were payable annually, and upon every recognized principle of law would draw interest from maturity. Authorities are not needed for so self-evident a proposition.

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