Mulhollem's Estate

Opinion by

Rice, P. J.,

This appeal is from an order discharging a rule to show cause why a sequestrator should not be appointed to take all the real estate left by the testator, to collect the rents, issues, and profits thereof, to make all necessary and legal repairs to the properties, and, after paying for the same out of the rents, to. pay the balance to Annie C. Mulhollem during her lifetime or until the properties are sold under the provisions of the will. The original petition did not specifically allege a neglect or refusal on the part of the respondent, as executrix, to repair, but left it to be inferred that she had failed in the duty to repair which devolved on her as life tenant. But, after the rule to show cause was granted and the answer of the respondent was filed, the petition was amended, by leave of court, by adding allegations that by reason of the death of her co-executor she had become sole executrix; that as executrix she had collected the rents, issues, and profits of certain dwelling houses, and that she was not keeping them in repair, but was* allowing them to become dilapidated, to the great loss and damage of the petitioner and the other persons who are to receive the proceeds of the real estate when sold. The amended petition concluded with a prayer that a sequestrator be appointed to collect the rents and make the necessary repairs, “or that the executrix be ordered to do so,” but the rule to show cause was not enlarged by formal order so as to cover the latter branch of the petition. The case has been presented as if the rule had been enlarged, and we shall consider it in that light.

It is conceded by the learned counsel for the appellee that, if the duty devolved upon the executrix to mánage the estate, receive the profits therefrom, and apply the same to the proper care and maintenance of the properties, the orphans’ court would have jurisdiction, upon proof of mismanagement on the part of the executrix, to require her to make repairs and enforce the order either by removal of the executrix or by sequestration or by attachment. As counsel are agreed upon that proposition, we need not discuss it or review the authorities cited by appellant’s counsel. According to that view, the case turns upon the question, whether under the fourth clause of the will the duty to make and pay for proper repairs devolved on the respondent, as executrix or as tenant for years. The clause, so far as material here, reads as follows: "Fourth. — All other real estate of which I may die seised I direct shall be held by my estate and the rents, issues and profits arising therefrom during the period of twenty years immediately succeeding my death shall be paid to my beloved wife, Annie C. Mulhollen, should she live so long, she, however, to pay all taxes, repairs, insurance and charges made thereon during said period. At the end of said period of twenty years I direct that the said real estate shall be sold at either public or private sale, and the proceeds thereof shall be distributed as follows,” etc.

It is argued by appellant’s counsel that the testator’s direction that the real estate “be held by my estate” means that it shall be held by his executors and implies their duty and authority to collect the rents, issues, and profits, and to appropriate so much thereof as is necessary for repairs. Appellee’s counsel argue, on the other hand, that the management of the real estate is not imposed upon the personal representatives of the testator, but upon the widow as tenant for years. Granting that the appellant’s position, so far as collection of the rents is concerned, is correct, the disposition of the rents, issues, and profits collected is not left to implication, but is expressly provided for. They are to be paid to the widow, and she, not the executors, is to pay for the necessary repairs. The language of the gift is inconsistent with the appellant’s contention that it was only the balance remaining after deducting the costs of repairs that was to be paid to the widow, and is entirely consistent with the appellee’s contention that the testator intended to give her the entire rents, issues, and profits for twenty years, if she should live so long, and to impose on her, as tenant for years, the duty of applying such part of the proceeds as may be necessary for proper maintenance and repairs. The Act of May 24, 1887, P. L. 188, provides a specific, simple and adequate remedy, by sequestration proceedings in the common pleas, for failure to perform such duty by a tenant for life or for years, and there is no occasion or justification for resorting to doubtful construction of the will, resulting in the implication of an intention to impose the duty on the executors, in order to bring the case within the jurisdiction of the orphans’ court. We, therefore, concur with the learned judge below in the conclusion that the rule to show cause should be discharged.

The decree is affirmed at the costs -of the appellant.