Johnston's Estate

Opinion by

Mr. Justice Walling,

This appeal is from the decree of the orphans’ court ordering the payment of a testamentary annuity and declaring it a charge upon real estate.

In 1913, the testator, William G. Johnston, died at his home in Watertown, New York, survived by a widow, Julia G. E. Johnston, the petitioner, to whom he was married in 1899, and by five children, the issue of a former marriage, and by four grandchildren. His real estate consisted of a valuable property at Penn avenue and Ninth street, Pittsburgh, and his home in Water-town. By an ante-nuptial agreement he provided for his wife a life annuity of $6,000 secured on the Penn avenue property; and by his last will she is given the life use of the home in Water town and $600 a year for its up-keep. The will also provides: “I do hereby, furthermore, give and bequeath to her [the wife] the sum of Six Thousand Dollars ■( $6,000.00) being in addition to the Six Hundred dollars referred to in the first paragraph of article 2, annually, during her life......and the same shall be a lien upon any real estate of which I may die seized and be accepted by her in lieu of any dower or any other purpose whatsoever”; and, after giving certain money legacies to employees, further provides: “I give and bequeath the total income arising from any real and personal estate excepting so much as is disposed of in the preceding article, as follows, viz: to each of my children and grandchildren below named, for and during his or her natural life, the one-ninth of said income, viz: [naming them]......Subject to all the limitations, provisions, gifts and bequeaths heretofore set forth in the preceding articles of this instrument, I hereby give, devise and bequeath all my real and personal property wheresoever situated to my following grandchildren, their heirs and assigns forever, to wit: [naming them]......I direct that on the death of each one of my children, one-fifth of my estate shall be immediately conveyed to my grandchildren herein mentioned, share and share alike...... It is my intention in the foregoing at the death of my last surviving child that my estate shall have all been conveyed to my grandchildren.”

The will appoints executors and trustees (one of whom is Stewart Johnston, the appellant), who are given the full and exclusive management of the estate with the right to sell real and personal property, but says, “No sale, however, shall be made of my property in the City of Watertown, aforesaid, or of that on the corner of Penn Avenue and Ninth Street in the City of Pittsburgh aforesaid, until after the decease of my wife, Julia G. E. Johnston.”

The personal property, after deducting specific legacies and all expenses and liabilities including a claim of $41,212.41 allowed his first wife’s estate, is $63,050.16. The Penn avenue property became vacant in 1915, and, owing to its dilapidated condition, remained tenantless until the fall of 1916 when it was rented to Spear & Company for a term of years at a large rental, which-at first goes to reimburse the tenants for extensive and permanent improvements. Until 1916 the trustee paid the widow the testamentary annuities in full from the income, which since that time has proven insufficient, resulting in default followed by this proceeding whereby the widow seeks to recover the unpaid balance of such annuities from the corpus of the estate. The trustee brought this appeal from the decree of the orphans’ court granting her the relief prayed for.

As the annuities are expressly charged upon the real estate, the question of an implied charge is not involved, nor is the question of the annuity in the ante-nuptial agreement. The proceeding taken in this case is within the Act of February 24, 1834, P. L. 84 (incorporated in Section 25 of Fiduciaries Act of June 7, 1917, P. L. 447), which provides, “When a legacy is or shall be hereafter charged upon, or payable out of real estate, it shall be lawful for the legatee to apply, by bill or petition, to the orphans’ court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed; whereupon such court......may proceed, according to equity, to make such decree or order touching the payment of the legacy, out of such real estate, as may be requisite and just.” The widow was the principal object of testator’s bounty and while he doubtless thought the income from the estate would prove ample to pay her annuities he makes no such limitation. The fact that the gift over to the grandchildren is expressly made subject to all prior provisions, gifts and bequests, which include the widow’s annuities, tends to negative any intent on part of testator to limit her to the income; as does the fact that the annuities are expressly charged upon all the real estate. It would be vain to make such charge and then deny the legatee the remedy to make it available. Should the buildings on the very valuable Penn avenue property be destroyed, the petitioner might be deprived of her annuities, notwithstanding the immense value of the vacant land, unless she could compel its sale. The annuities are not limited to the income nor to any particular fund and the intent of the testator undoubtedly was that they should be paid, and the final gift of all of his estate to the grandchildren, is as it expressly states, subject to all prior bequests. The will as a whole does not justify the finding of an intent that the corpus of the estate must remain intact for the grandchildren without regard to the annuities; that would be a postponement of the primary object to the secondary. In the absence of an express restriction, or its equivalent, the corpus of an estate given subject to an annuity may be taken for its payment when the income proves insufficient for that purpose: see 3 Corpus Juris, p. 212; Smith v. Fellows, 131 Mass. 20. This rule is not affected by testator’s belief that the income would be ample to pay the annuity: Pierrepont v. Edwards, 25 N. Y. 128.

The trustee executed the lease to Spear & Company, and at their request secured the written approval of the beneficiaries, including petitioner; that would prevent them from contesting the lease and require that a sale of the property be subject thereto, as probably would have been the case in any event. Beyond that Mrs. Johnston waived no rights by such approval. This is especially true as it was given under the written assurance of the trustee that, “Mrs. Johnston waives absolutely nothing by signing, except her future right to kick on terms and conditions of lease, which in no way refers to her other rights.” The question of estoppel does not seem to require extended discussion.

The suggestion of appellee that the temporary deficiency be paid from the principal of the personal estate is worthy of consideration, doubtless it might by consent of the parties in interest; whether it could without such consent was not raised by any assignment of error nor discussed by appellant and we do not pass upon it. In our opinion the decree of the orphans’ court, declaring the annuities a charge upon the Penn avenue property and authorizing proceedings for their collection in case of default, was properly made.

The assignments of error are overruled and the decree is affirmed at the costs of the estate.