Estate of Parry

Opinion by

Mr. Justice Dean,

On October 14, 1895, with a view to foreign travel, accompanied by his wife, William A. Parry purchased from Drexel & Company and the Tradesmen’s National Bank of Philadelphia, two letters of credit, each in the sum of $10,000. The letters are in the same words, of which this is a copy:

“We hereby authorize the bearers, W. A. Parry and Minnie H. Parry, his wife, to value at sight upon Credit Lyonnaise, London, to an amount not exceeding ¿£2,000, or, at their option, upon Credit Lyonnaise, Paris, to the extent of 50,000 francs.” The credits were to extend to December 31, 1896. The husband and wife had been on their travels about four months when he died at Darjeeling, India, on February 8, 1896. At his death, there remained a balance unexpended on the letters of credit of $12,825.34. This was drawn by the widow before she returned to her home in Philadelphia. Before he left home, on March 29,1895, the husband executed a will, whereby he bequeathed to his wife absolutely, $20,000, and the income of nearly all the remainder of his estate, which was large, for life, and appointed her and Joseph Hopkinson executors of his will. By their first account filed there was a balance of over $120,000 for distribution. At the audit, the widow’s coexecutor claimed she should be charged with the balance, $12,825.34, unexpended on the letters of credit at the death of her husband. The auditing judge sustained the claim; she filed exceptions. On hearing before the court in bane, but two judges, Ashman and Penrose, sat; one was for affirming the decree of the auditing judge, the other for reversing; so, the court being equally-divided, the decree was affirmed.' [See 6. Dist. 717.] From that decree we have this appeal by the widow.

The credit was purchased by the husband’s money; the wife paid none. The learned auditing judge was of opinion that the letters were issued to them jointly, merely as a matter of convenience ; that, as they represented the husband’s money, and there was no evidence of a gift or assignment by him to her, the unexpended balance should be charged against her.

We are clear, the writings created an estate, as between husband and wife, by entireties, and such an estate at common law goes to the survivor. This estate may be created in a chattel as well as realty, in a chose in action and one in possession. Freeman on Cotenancy and Partition, sections 63 and 68. And as to choses in action, it is not abolished by the legislation affecting joint tenancy; for an estate that as to unmarried persons would be a joint tenancy, as to husband and wife is a tenancy by entireties. Therefore, neither the act of March 31, 1812, that of April 11, 1848, nor that of June 3, 1887, applies. This question is fully discussed by our Brother McCollum in Bramberry’s Estate, 156 Pa. 628. These letters of credit on their face have nothing to distinguish them, in their legal consequences, from a draft drawn in favor of the husband and wife as payees, by the American bankers on the foreign ones, or from a certificate of deposit or promissory note to them jointly; all of which have been held to constitute an .estate by entireties. It was not an absolute gift to the wife of the whole amount, nor intended so to be; it was an estate in personalty, the value of which to her depended on two contingencies: 1. On her survivorship during the life of the letters. 2. On how much was still payable at his death. Both contingencies happened, and she survived as to so much of the estate as had not been spent.

The fact that they were going abroad, and that this was a convenient method of providing money for their expenses, does not rebut, or even oast doubt on, tbe intention expressed in the writings. The husband procured to be framed and delivered an instrument which effects certain legal consequences on the happening of certain contingencies. He knew that by means of it either could readily obtain money in foreign countries ; that if both survived to return home he could receive from the bankers who issued the letters, the estate being personalty, any balance not expended; that if he died abroad the surviving wife took all that was left. There is not a spark of evidence indicating any other intention than that wrhich legally arises on the face of the paper. In fact, he may have, very reasonably, intended that if he died abroad among strangers his widow should immediately be possessed of funds sufficient for her necessities and comfort, independent of any provision made for her in his will. Appellees argue, that by such construction, if a letter of credit were issued for an indefinite amount, it would enable the widow to sweep the entire estate. We think it highly improbable that any banker would issue a letter of credit for an indefinite amount, which would enable the wife to sweep her husband’s entire estate and, perhaps, the banker’s too; but, if such a letter were issued at the request of the husband, the presumption would be quite strong that he intended his wife should have his entire personal estate in case of his death. However, any improbability as to intention which might possibly be raised by such an extreme case is without weight here, for the husband took the letters for a limited amount, probably not one twentieth of his large estate.

We think the court below erred in charging appellant with the sum of $12,825.84, balance unpaid on the letters of credit at her husband’s death.

The testator, in addition to other large bequests to his widow, directs that she shall have “all his clothing, household and kitchen furniture, linen, china, plate, plated ware, jewelry, pictures, engravings, books, bric-a-brac, and articles of personal use and ornament.” Under this clause, the widow claimed a sailing yacht owned by testator at his death. The court below did not allow her claim, because, in its opinion, a fair interpretation of this bequest pointed only to an intent to give her such goods and chattels as would be kept in his dwelling house or on his premises, and that the words, “articles of personal use and ornament,” did not include the yacht. We think this view correct; the words evidently meant to embrace articles of personal use and ornament in the house, like unto those enumerated.

As to the first assignment of error the decree is reversed, and it is directed the surcharge of $12,825.34 be stricken off. As to the remaining exceptions it is affirmed, costs of appeal to be paid out of the fund.