Estate of Knaub

22 A. 814, 144 Pa. 322, 1891 Pa. LEXIS 615

• Court: York County Orphans' Court
• Decided: October 5, 1891
• Docket: Nos. 5, 6
• Status: Published

Opinion

NO. 5.

Opinion,

Mr. Justice Williams :

The facts of this case appear in the petition and answer, and they present a question of construction arising on the will of Levi Knaub. When the testator executed the will, his family consisted of his wife, two sons, and one daughter. His property was composed of two farms, farming tools, live-stock, and household goods. He disposed of his property among the members of his family as follows: To his wife he gave a life-estate in the farm on which they resided, and in all his personal estate ; to his son Levi he gave the same farm in fee, subject to the life-estate already created, “at $5,000,” with remainder over to John in case Levi should die leaving no issue. To his son John he gave the other farm “at $2,650,” with remainder over to Levi in case John should die leaving no issue. To his daughter and her husband he gave five dollars “in full of their share.” There was no further disposition of the personal property. The wife died in the lifetime of her husband, so that the provision for her never took effect. The farm went directly to Levi, and the personal estate to the executor, for distribution under the intestate laws. The daughter now contends, and the court below held, that the values put by the testator on the farms devised to his sons, are charged upon them by the terms of the will, and constitute a part of the personal estate, and that she is entitled, as an heir at law of her father, to one third of said sums. The questions thus raised are whether the will does charge these farms in the hands of the respective devisees with the payment of the prices at which they were valued; and, if so, whether Rosanna Myers is entitled to share in the fund.

It is well settled that, to sustain a charge upon lands, the intention of the testator to create such charge must appear by express words, or by necessary implication arising on the face of the will: Hackadorn’s App., 11 Pa. 86. It is not pretended that there are any express words in this will showing the purpose of the testator to subject these farms to the payment of their values to his executor or administrator, and we are unable to find any provision from which such a purpose may be gathered by necessary implication. The testator states the value of each farm, but he does not direct its payment or make any disposition of it. He does not appear to aim at equality among Ms cMldren, nor to attempt more that an approximation towards it between his sons. The bequest to his daughter and her husband he expressly declares to be “ in full of their share.” So far from providing a fund by means of which an equal division can be secured, the testator fixes her share in the property disposed of by the will at a nominal sum, and then, to exclude the idea of a further division, declares that this sum is to be “ in full of their share.” It may be that this does not exclude her from her share of the property as to which her father died intestate. That question is not raised on this record, and we need not consider it, though much the same question was raised and decided in Hitchcock v. Hitchcock, 35 Pa. 393. But “ her share ” in the real estate devised to her brothers was extinguished by the terms of the will, and five dollars to herself and the like sum to her husband put in lieu of it, and “ in full ” of her claim upon or “ share ” in it.

The testator intended to give his farms to his sons; the better one to Levi, subject to the life-estate .in his mother; the other one to John, who was already in possession of it. We are not to give a reason for his adopting this method of division rather than some other, but to ascertain his intention as expressed in the several provisions of his will. This was to vest in his sons a title in fee-simple to the farms devised to them, respectively, with cross-remainders, in case of the death of either leaving no issue. The valuation put upon each shows what the testator thought the value of the gift to each son to be. It is not a charge on the land. There is no personal obligation created by it, and there is no fund, of the sort alleged, for distribution. This disposes of the case, and renders it unnecessary to consider the other question suggested.

The decree is reversed, and the petition dismissed, at the costs of the appellee.

no. 6.

Me. Justice Williams:

This appeal was taken from the decree just considered in the appeal of Levi Knaub. It involves the same question. For the reasons given in the opinion in that case,

The decree of the court below is reversed, and the petition of Rosanna Myers is dismissed; the costs to be paid by the appellee.