McFarland's Appeal

The opinion of the court was delivered, by

Thompson, J.

— The testator died leaving a widow but no lineal heirs. To his widow he devised all his estate during life, “ with entire, absolute, unconditional, and unrestricted control, management, and supervision, to receive all the proceeds, rents, issues, and profits of the same, and dispose of them in any manner she may deem proper and right. It being hereby my intention and desire that she shall, during and for her natural life, occupy and be in my position, place, and stead.” He then proceeded to make an entire disposition of his estate, after the life estate thus given shall have expired.

It is very evident that his widow was the first object of his bounty, and that he intended ample provision for her during life. This is not only apparent from the will, but the law presumes the first taker of an estate to be the favourite. Whether the widow shall be so, depends on the interpretation to be given to the will. Certainly she will not be so if the appellees are right.

In his lifetime the testator covenanted by articles of agreement to sell sixty acres of land in the vicinity of Pittsburgh, for $30,000, on payments, with interest. On the expectation that this sum would be realized, either from the sale thus made, or from a future sale of the same property, in case it reverted to his estate, as it might and did do, he made this sum the basis of numerous legacies to be paid after the death of his widow, thus giving her the proceeds or interest of the money during life, under the clause in the will already cited. This was all clear in case the land did not revert.

But it did revert during his life, as he had anticipated that by possibility it might. Notwithstanding this, however, he made no change in the disposition of his estate. This was not necessary to effectuate his primary intention. The intention is clearly evinced, we think, that his will should remain exactly the same under the change of circumstances which might occur in regard to the land sold, if we keep in view what he evidently intended, viz. the conversion of the land into money if it should revert, the interest of which to be enjoyed by his widow during life, and the principal after her death to be distributed to the legatees as directed in the will. He also intended a complete disposition of his entire property, for he so declares, and as all other portions of it had been devised and bequeathed subject to the life estate of his widow, so the disposition suggested as being intended by the testator in regard to this particular tract of land, would complete the entire disposition which he was anxious to make.

As already said, the testator anticipated, from the nature of the agreement for the sale of the land, that it might revert to himself or executors. In this event it is plain he intended a sale should take place, so that the fund for his widow and for the legatees should continue to exist, or as nearly so as the price it should bring might allow. As evidence of this we recur to the will. After saying that the land sold might fall back to himself or executors, he provides that as, “ by the time of such reversion, the land so sold as aforesaid may have decreased in value,” and not be of the value at which he had previously sold it, viz. $30,000, the basis, as he declares, of his calculations in making bequests, the deficits shall be borne equally, fro rata, by all those of his legatees “to whom he had given money legacies.” When was the value to be ascertained, if the land reverted so as to ascertain whether there would be any deficit or any surplus ? The will determined this. It was to be when the land should revert. And it may be said to have reverted to the executors immediately on his death, notwithstanding it had reverted before his death, but was not disposed of by him. It was not necessary, of course, for the purposes of the will, that he should convert the land into money. He had given power to his executors to do that, and this was enough. It therefore reverted to them to be disposed of on his death. It was then to be sold, and then his legatees would know the amount of their legacies, by ascertaining whether there would be any deficit, and the widow would be entitled to the interest of the money. He repeated the same direction in another part of the same clause,- wherein he provides that if, at the “time of such reversion,” the said land should exceed the sum of $30,000, then the excess should go to the American Bible Society.

The excess, like the deficit, was to be ascertained, and, by the direction to that effect in the will, both were to be ascertained at the time of the “reversion” of the land. This could only be ascertained by a sale; no appraisement could effect that object; and we think the will cannot be executed without a sale.

The direction by the testator to his executors, that, if they should have to make deeds to Mr. Woods, they should have power to do so without being under any necessity of applying to court, but that they should exercise their own discretion on the subject; and also in regard to the special trusts reposed in them, has been mistakenly supposed to indicate an intention that no sale was to be made, excepting at their discretion, and hence none might be ordered by the court. If it had been a matter of discretion, still an unreasonable exercise of it could be corrected by the sujjervisory power of the court. But the testator did not mean what is here supposed. His direction refers to the conveyances which he anticipated might be required to be made to the purchaser from himself, and then they were to make deeds without being put to the trouble and expense of proving the contract, and asking leave to make them. This was what he meant. As trustees also, he gave the executors discretionary power in the same clause. But these provisions do not touch the case of a sale of this land after it should revert. There is a general authority to sell it without expressly naming the executors; and as there has been some controversy as to their right to do so, and as they are trustees for legatees interested in the sale, we think it a proper case for an order for sale by the Orphans’ Court, under the 12th section of the Act of 24th February 1834, and for its control in regard to the investment of the purchase-money in such a manner as to carry out the provisions of the will as we have found them to be.

The idea that a sale was to be postponed until after the death of the widow, as contended for by the appellees, is not to be found in the will. The clause cited to sustain this view I think proves the opposite. It is as follows: “ after the death of my beloved wife, Catharine McFarland, it is my will and desire that all my property and estate, real, personal, and mixed, shall be disposed of, and I do dispose of it as follows, &c.” The disposition he makes is to turn the realty into money, the principal to be paid after her death. There is nothing like an intention that the land should remain until after that event, and I cannot see how any such idea could have been drawn from it.

All parties in interest, excepting the American Bible Society, and the executors, desire the sale. The latter have no interest in the subject-matter but as executors and trustees; and the former but a residuary interest. And we cannot allow this expectancy to defeat a provision by the testator for his widow, in order to enhance the chances of increasing that residuary interest in a future sale. The decree of the Orphans’ Court must be reversed, at the costs of the appellees.

Decree. — November 22d 1860. This cause having come on for hearing on the appeal of Catharine McFarland from the decree of the Orphans’ Court of Allegheny county, and having been argued by counsel, and duly considered by this court, it is ordered and decreed that the said decree of the Orphans’ Court, dismissing the petition of the said Catharine, be reversed, and it is now here further ordered and decreed, that the executors of Joseph McFarland, deceased, proceed to sell, within one year from this date, on such terms of payment as shall be approved or directed by the said Orphans’ Court, the tract of land described in the said petition, and make and deliver proper conveyances therefor, on the payment of the purchase-money, or on obtaining proper security therefor by bonds secured by mortgage or mortgages on the land sold, and securely invest the said purchase-money, as the same shall be received, for the benefit of the said Catharine McFarland during her life, and afterwards distribute the same to the legatees appointed by the will to receive it. And the cause is now remanded to the said Orphans’ Court, that this decree may there be carried into effect, the costs to be paid by the appellees.