Watson v. Smith

Opinion by

Mb. Justice Thompson,

The title to the land involved in this ejectment depends upon the construction of the will of James Smith, Sr., deceased. By his will, in the first paragraph, he devises his farm to his son, Johnson C. Smith (one of the appellees) his heirs and assigns, subject to the payment of his debts and certain legacies ; in the second he devises to his son all his personal estate; in the third he devises $1,000 to his son; in the fourth he devises $300 to Laura Day and, finally, he concludes it by the following: “It is my desire that the children of my daughter Sarah Elizabeth, who was intermarried with D. D. Watson, shall be made to share equally with my son Johnson C. Smith (i. e.) after all legacies named herein shall have been paid, then each child of my deceased daughter named above shall be entitled to receive their share of the one half which remains.” It is clear that the first taker, Johnson C. Smith, was the principal object of the testator’s bounty. The law presumes an intention to favor him and the construction of his will will be made in the light of such intention: McFarland’s Appeal, 37 Pa. 300; Wilson v. McKeehan, 53 Pa. 79. Such purpose of a testator evidenced by his will cannot be waived aside by ambiguous or equivocal directions, and even if there be doubtful expressions, that construction of the will will prevail which will support the main intention. His first intention, as expressed in the first paragraph of his will, was to give to his son an estate of inheritance, devising the farm to him and his heirs and assigns, and an intention to cut it down by a subsequent paragraph must appear unequivocally: Krebs’s Estate, 184 Pa. 222.

The words of the last paragraph do not express unequivocally such intent. They are that “ the children of his daughter, Elizabeth, shall be made to share equally with his son, Johnson C. Smith,” and then by way of definite explanation he adds, “ after all the legacies named herein shall have been paid, then each child of my deceased daughter named above, shall be entitled to receive their share of the one half which remains.” The words “ legacies,” “ to receive ” and the words “ their share of the one half which remains,” clearly have reference to personalty, that being primarily chargeable with the payment of legacies. While they are made chargeable in the first paragraph upon the farm, there is nothing in the will to show a plain intention to exonerate the personalty from their payment. There is, therefore, no repugnance between the first and last paragraphs of the will and as there are no unequivocal expressions of an intention by the testator to cut down tbe estate of inheritance devised to his son in the first paragraph, the appellants were not entitled to recover in this action of ejectment, and tbe judgment is affirmed.