Halt's Estate , 1914 Pa. Super. LEXIS 263 ( 1914 )

Opinion by

Trexler, J.,

The question involved in this appeal is: Are the general pecuniary legacies mentioned in the will of Adam Halt, a charge on the real estate devised to his sons, no personal assets applicable to their payment having come into the hands of the surviving executor?

The testator gave his widow a life estate in his entire estate, after her death the executors were directed to divide “the rest and residue” of the estate. To certain of his children sums of money were bequeathed, as their full share of his estate and “the personal and movable property then remaining” was to be divided equally between his sons, Henry and Adam.

He then devised his real estate to the two sons above named, particularly describing each one’s portion.

Two of the three judges comprising the court below decided that the legacies were a charge upon the lands devised to the two sons. We cannot come to the same conclusion. It is true that the testator refers to “the rest and residue” of his estate after his widow’s death, and these words would indicate a blending of the real and personal estate. But why stop here in ascertaining the intention of the testator? The whole will should be considered and from its four corners the testator’s meaning should be gathered. Proceeding further we find the testator clearly preserved a distinction between his personal and real estate which does away with any idea of their' commingling and furnishing a common fund for distribution.

It will be observed that the pecuniary legacies were to be paid and “the personal and movable property then remaining” was to be divided in equal shares among his sons, Henry and Adam. These sons apparently were the favored objects of their father’s bounty and to them was also devised his real estate.

No intention is shown to charge their lands with the pecuniary legácies. Evidently the testator considered his personal estate not only sufficient to pay the legacies but to provide a balance for his two sons, Henry and Adam. That he was mistaken in this, at the time the will was made, does not alter the case, and surely a change in his circumstances subsequently would not.

As was said in Duvall’s Est., 146 Pa. 176 (184) the personal estate is not only the primary but prima facie the exclusive fund for the payment of legacies, and this conclusion cannot be repelled by showing that the testator had no personal estate when the will was executed. Nor would a lack of personal assets at his death: Brookhart v. Small, 7 W. & S. 229. Nor would a mistaken idea as to how much of the personal estate his wife would consume for maintenance change the construction of his will.

There was no power given to the executor to sell the real estate so as to provide a fund for the payment of the legacies: Brookhart v. Small, 7 W. & S. 229.

The will as a whole shows no intention of blending the real and personal estates, and we find nothing that would charge the lands devised to the sons with the payment of the pecuniary legacies.

The decree is reversed at the costs of the appellee.