Hagerty v. Albright

The opinion of the court was delivered, May 15th 1866, by

Woodward, C. J.

If the opinion of the learned judge on the bequest of 450?. to Anna Fretz in her father’s will were more doubtful than it is, there is a circumstance disclosed in the stated case which would dissuade us from placing a different construction upon the will. I allude to the fact, that in 1835, when Abraham and Joseph Stover, sons and residuary devisees of the testator, made partition between themselves of the real estate, they charged' half of Anna’s legacy on 153 acres which Joseph took, and the other half on 134 acres which Abraham took, the annual interest thereof to be paid to Anna during her life, and at her decease the principal to be paid to her sisters Elizabeth Greisinger and Susanna Stover.

This was a construction of the testator’s will that gave Anna only a life interest in the legacy, and she acquiesced in that construction all her life by receiving the annual interest from her brothers or their successors in title without once demanding the principal to be paid to her. And these successors read the will in the same way, for they accepted title-deeds that amounted to covenants on their parts to pay the interest to Anna for life, and the principal after her death to her sisters or their heirs.

For more than thirty years, therefore, all parties in interest have concurred in understanding the will to mean just what the learned judge expounded it to mean. Anna, for whose benefit this particular bequest was intended, enjoyed it during life in the manner she thought her father intended, and now, if it could be demonstrated, never so clearly, that he meant she should have had an absolute interest in the legacy instead of its usufruct, it would ill become us to say in direct opposition to the terms of the will, that it shall not be “ due and payable to her two sisters, Elizabeth and Susanna, to them, their and assigns for ever.”

But it is not utterly certain that the technical construction of the words, “ if Anna dies without heirs,” would impute an indefinite failure of issue, because the intention that the legacy should go over, an event which was before the testator’s mind, is most clearly expressed. What was the event ? Manifestly the death of Anna without living children. It was a bequest of personal property, and in such cases it was said in Bedford’s Appeal, 4 Wright 22, that very slight circumstances are laid hold of as sufficient to indicate an intention, that a limitation over on death without issue shall take effect at a definite time, to wit, at the death of the first taker.

The circumstances in this case are of a nature imperatively to .demand such a construction, and therefore the judgment in each case is affirmed.