Kline's Appeal

Mr. Justice Mercur

delivered the opinion of the court,

The first question we will consider is whether the appellant took as a residuary legatee, under the last will and testament of George Seibert ?

By his original will of the 7th of November 1861, the testator disposed of his whole estate. After several specific devises, he devised all his residuary estate to Christiana Kline, and divers other persons named, to be equally divided among them, share and share alike. He further proceeded to say, “ it is also my will and desire, and I do hereby order and direct, that the share of the said Christiana Kline shall remain in the hands of my hereafter-named executors. They shall put it on interest and pay her the interest annually during her natural life, and after her death the principal sum to Benjamin Kline and to his heirs and assigns,” with remainder over in default of issue. Christiana was a sister of the testator, and Benjamin was her grandson. By the first codicil thereto, dated the 10th of February 1863, he devised to Benjamin Kline, his heirs and assigns, the sum of $500, but declared that the annual interest thereon should be paid to Catharine Kline, and after her death the principal to Benjamin Kline, and he revoked the devise made to Benjamin in the original will. Catharine and Christiana were one and the same person. Benjamin is the appellant. Thus this codicil took from him the residuary estate given by the original will on the death of his grandmother, and gave him a specific legacy of five hundred dollars; but it also gave to her during life the interest on these $500 in addition to the interest on the residuary estate given her in the original will.

On the 21st February 1866 he executed a second codicil. He therein refers to the original will, and to the first codicil, each separately, and to certain of the devises given in each. By this last codicil he devised to Benjamin Kline, his heirs and assigns, the sum of $500, in addition to the sum in the first codicil mentioned. Then referring to the annual interest which he had devised to Christiana in the original will, and also in the former codicil, he proceeds to say, “ And whereas in my said will and in my codicil I have given and bequeathed unto Christiana Kline the annual interest during her natural life, which I do hereby declare that the same shall be void, and no heir in my will and codicil, and have nothing out of my estate, and be paid the same to Benjamin Kline as before mentioned in my will and codicil.”

It is very evident that these testamentary writings were not drawn by an able lawyer or experienced scrivener, yet we think there is no great difficulty in discovering the intention of the testator. It is clearly manifest that the testator intended to revoke those portions of the original will and of the former codicil that gave to Christiana the annual interest, during her life, on the funds therein specified. We think the intent in regard to the. devise to Benjamin is also sufficiently clear. The testator had in his mind the residuary share mentioned in his first will, as well as the specific legacy in the codifiil. He thus revoked each devise giving annual interest to Christiana. It remained to make some disposition of the residuary share thus relieved from her life interest. In his first will he had given it to Benjamin. In the codicil he had revoked it. He now desires to reinstate it. By transposing two words in the last codicil, which will do no violence to its letter or its spirit, the intention of the testator will be more clearly expressed. This we may do : Schott’s Appeal, 28 P. F. Smith 40. The true reading then is, “ and the same be paid to Benjamin Kline as before mentioned in my will and codicil.” “The same” to be paid to Benjamin manifestly did not refer to the interest only, but to the principal sums which would produce the interest. It professed not to take anything from Benjamin’s portion, but to add to it. Never before had he any devise free from the life charge of Christiana. Now they were discharged therefrom, and so discharged they were both to be paid to him “ as before mentioned in my will and codicil.” The language used is fully adequate to give each devise to him relieved from its former charge. There is no legal impediment in the way of giving effect to this instruction. It therefore follows, the learned judge erred in holding that the appellant took no share in the residuary estate.

The other question relates to the effect to be given to the decree of distribution of a portion of the estate, made in 1868. In that distribution the present appellant was represented by counsel. His claim as residuary legatee was presented and disallowed. It is now claimed on his behalf, that the auditor’s report, distributing that fund, was not finally confirmed. The auditor appointed to distribute the present fund found as a fact, that it was absolutely confirmed by the court. No sufficient evidence is produced, to show that he erred in thus finding. We must therefore hold the decree of'distribution there made to be correct as to the fund distributed: hut it is not conclusive as to every question then considered. The precise point arose and was decided in Guenther’s Appeal, 4 W. N. C. 41. There, as here, the executors had filed a partial account, showing a fund in their hands. On the distribution thereof Lina Clara Guenther claimed her mother’s share, under the will of the testator. The auditor allowed the claim. No exception was filed to the report, and it was confirmed. Payments, in pursuance thereof, were made 'to her for several years. On the distribution of funds, subsequently acquired by the executors, the conclusiveness of the former decree of distribution was the direct question. She claimed it was conclusive of her right to share in the proceeds. The court below held otherwise and excluded her claim. On appeal this court affirmed the decree, and said, “ the prior decree of the Orphans’ Court Avas conclusive only as to the funds then distributed.” That, therefore, rules this case. In so far as the appellant Avas excluded as a residuary legatee, from a share in the fund not included in the former distribution, there was error. To the extent thus indicated the assignments are sustained; the others are without merit.

Decree reversed at the cost of the appellees, and the record is remitted to the court below, with instructions to decree distribution conformably with this opinion.