Eby's Appeal

Mr. Justice Gordon

delivered the opinion of the court,

The main intent of the testator was to provide for the support and maintenance of his wife and two unmarried daughters, Elizabeth and Mary, for and during their several lives. For this purpose he set apart his plantation adjoining John Becker and others, together with the furniture of his house, stock, farming utensils, &c., and should the property so set apart prove insufficient to afford the maintenance thus designatéd, he directed that it should be supplemented from other parts of his estate. Having in this manner carefully provided for those whom he considered the most dependant1 upon his care and providence, he next proceeds to dispose of such of his estate as should remain after the death of these prime objects of his bounty. To this end he directs that the whole of his property, real and personal, thus remaining undisposed of, shall be sold by his executors, and the proceeds thereof divided in the manner following, viz.: “.My son Christian shall have no part of the money raised out of my real estate; that is to be divided among my three daughters, Esther, the wife of Abraham Shelly, and the heirs of Elizabeth and Mary, in equal shares, including such sums received by them previous to such settlement.” ^From the foregoing it is apparent that the fund for distribution is strictly personal, and even the idea that any part of it sprang from real estate, is maintained only in order to indicate from what portion of that fund Christian shall be excluded. 'Git follows, that this matter must be governed by the ordinary rules applicable to the distribution of personal property. (/Such being the case, unless a contrary intent is indicated by the will, we must construe the word “heirs,” as founcHn that will, as equivalent to “ representatives” or “ distributees.” Gin such case, the husband must be taken to be an “heir” of his wife as to her personal estate; and not only do our distribution acts so in effect provide, but this idea is sustained by many decisions, commencing with Patterson v. Hawthorn, 12 S. & R. 113, and ending with McGill’s Appeal, 11 P. F. Smith 46. This conclusion is objected to for the reason, that, as this legacy did not vest in Mary, wife of , John Gensémer, the appellee, but was limited directly to her heirs, the above cited cases do not apply, inasmuch as the husband could not take as administrator or representative of his wife. But chis seems to be the very point met in the case of Gibbons v. Eairlamb, 2 Casey 217; for the question therein arose whether the husband of a female legatee, who died before the time at which the bequest would have vested was to be regarded as her “ heir or representative,” within the meaning of the will, and it was held that he must so be considered though he could not take as administrator. Regarding the matter from the stand-point of legal interpretation and we conclude that the decree of the court below must be sustained. Nor can we come to a different conclusion in seeking for the testamentary intent. Without a single expression to the contrary, why should we suppose that Jacob Schumaker intended that the words which he used should have a meaning different from that of their well known legal signification ? In the case of Esther, the wife of Abraham Shelly, the gift is absolute and unconditional, and yet the testator must have known that, in the event of her death, her husband would take as her representative. But if he did not intend to exclude the husband of Esther from the possibility of his bounty, we may reasonably infer that he did not intend to treat in 'a different manner the husband which Mary might choose. That he contemplated the possibility of her marriage is sufficiently obvious from the fact that he limits the legacy to her heirs directly, whereas, had he considered it certain that she would die unmarried, it is more than probable that he would have provided for the distribution of this remainder of his estate among his own heirs and beneficiaries. If, however, he had her marriage in view he must at the same time have had in view the relation which her husband would occupy to her personal property in case of her death.

Decree affirmed.