Estate of Gold , 1890 Pa. LEXIS 926 ( 1890 )

Opinion,

Mr. Chief Justice Paxson :

This case is upon all fours, both as to its law and its facts, with Markley’s Est., 132 Pa. 352, decided at this term, where we held that the widow had the right to use so much of the personal estate as was necessary for her comfort and support, and that it was only the residue that was to go to the testator’s children after her death.

In the case in hand, the personal estate consisted of household goods, farm implements and live-stock, pigs, chickens and farm crops, a note of I860, and one of |150, with some credits indorsed thereon.

The testator disposed of his estate as follows: “ I give and bequeath unto my dear wife Abigail all and whatsoever is remaining [after payment of debts] of my property of whatever kind or nature the same may be after my decease, to have, hold, use, possess, and enjoy the same during her lifetime. And, further, it is my will, and I do order after my wife’s death that all the remaining property of whatever kind shall be sold and divided among my five children in equal parts,” etc.

It is clear that the testator’s wife was the first object of his bounty, and that he intended she should use so much of his personal property as might be necessary to her support during her lifetime. The language of the will is very emphatic. She is to “have, hold, use, possess, and enjoy the same during her lifetime,” and it is only the remainder, that is, what is left thereof, that is to be sold- and distributed among his children after his wife’s death. There can be no possible doubt as to this construction, so far as'regards the perishable property, such as household goods, farming implements, stock, and produce of the farm. Nor do we think there can be any doubt as to the two notes. They were intended for her support, if needed; what was left was to go to the children. We therefore think it was error to refuse to allow the accountant credit for the amount of the disbursements made by him to the widow, in discharge of the note held by the testator against the accountant. This view is not in conflict with Hofius v. Hofius, 92 Pa. 308. That case differs widely from this, and the distinction is so palpable that we need not stop to discuss it.

All of the assignments of error are sustained.

The decree is reversed, at the costs of the appellees, and it is ordered that the record be remitted to the court below, with instructions to proceed to make distribution in accordance with this opinion.