Postlethwaite's Appeal

The opinion of the court was delivered,

by Sharswood, J.

There was no incongruity as is supposed in the decree below dismissing the petition of the appellants with costs, and at the same time making a decree in favor of the respondent, awarding the principal of the legacy to him. The 59th section of the Act of Assembly of February 24th 1834, Pamph. L. 84, provides that “ 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 having caused due notice to be given to such executor and to the devisee or heir, as the case may be, of the real estate charged with such legacy, and to such other persons interested in the estate as justice may require, 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.” It is evident that the jurisdiction of the court having attached by the presentation of the petition, it has entire control of the subject as a court of equity would have. Having all parties before it, it can and ought-to make such decree as law and equity require, and which will be binding upon all. It may therefore dismiss the petition of one who shows no right, and decree that the legacy charged shall be paid to another to whom it is adjudged to belong.

The main contention, however, has been upon the true construction of the will of Adam Shirey. It has been long and well settled, and indeed it is a principle so consonant to reason that’ the only wonder is that it should ever have been questioned, that all the surrounding circumstances of a testator — his family, the amount and character of his property — may and ought to be taken into consideration in giving a construction to the provisions of his will. Adam Shirey had been twice married. By his first wife he had two sons, and by his second one daughter. The second wife and all three children survived him. He had a farm in Antrim township, Franklin county — two houses, a shop and the lots upon which they were erected in the borough of Green-castle. By his- will he bequeathed to his wife the house and lot on which they lived, with the interest of $2000 to be paid to her annually during her widowhood, “the said dower to remain in the land, and the household furniture to remain as it now is as long as my wife remains my widow.” He then proceeds immediately as follows: “ I will and bequeath all the rest of my property, both real and personal, to my three children, except the house and lot in the possession of my beloved son Milton Shirey, which I give and bequeath to him before any divide of my property is made.” Although if this were the only residuary bequest in the will it would undoubtedly be sufficient to pass everything undisposed of, and so carry the principal of the legacy to the widow upon the termination of her interest, yet as there is a subsequent residuary bequest it is evident, construing the whole instrument together, that by all the rest of his property, real and personal, he meant his farm in Antrim, his remaining house and lot, and such personal property other than the household furniture specifically bequeathed as he should die possessed of. As to all this property he evidently contemplated an immediate division of it upon his death, for he provides that Milton shall have the house and lot in his possession before any “ divide” of his property is made. He evidently is not adverting to the reversionary interest in the legacy of $2000, the interest of which was to be paid to his wife as long as she remained his widow. It was not before his mind at that time. But when he does advert to that afterwards at the close of his will, he provides with greater fulness and particularity so as to include everything not before disposed of, “ And all the rest, residue and remainder of my goods, chattels, ready money, effects and other of my estate both real and personal, I give and bequeath the same to my son Milton Shirey.” The power given to Milton, who was the executor, to sell his shop and half lot of ground, together with the farm in Antrim, following immediately this residuary devise, shows that he did not consider these properties as included in it, for why should he be vested with power to sell what would thus have been given to him absolutely? They had previously been devised to his three children, and the power of sale was proper in order most conveniently to effectuate the devision which he contemplated among them. Thus there is no repugnancy in the will, but effect is given to every word, a result always to be aimed at in construction. We give no opinion upon the question whether the wife took an estate in fee or during widowhood in the house and lot devised to her. That question was not before the court below and is not before us. The only subject within the jurisdiction of the Orphans’ Court and brought up on this appeal is the legacy of $2000 charged on the land. Upon that subject we think that the learned court came to the right conclusion.

Decree affirmed, and appeal dismissed at the costs of the appellants.