Houser v. Moore

31 Pa. 346

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1858
• Status: Published

Opinion

The opinion of the court was delivered by

Woodward, J.

The paramount intention of the testator evidently was, to divide his estate equally among his several children. His mode of effecting this object was to survey his real estate into as many parts as it would conveniently admit of — to value each part proportionately, and to devise to each child a part charged with the payment to the other children of such owelty as would establish equality among them all. But as there was not land enough to give each child a part, when divided as he thought proper to divide it, the sum of $2184.87, the ascertained value of each purpart, was to be paid, by those who took land, to each of those for whom there was no land.

He made his will on these principles, annexing thereto a diagram of the partition he had made of the real estate; and he declared in writing that he published that diagram as part of his will.

To his daughter, Ann Wortz, he devised no land in the body of his will, but gave her a pecuniary legacy to the full amount of the value he had assigned to each purpart of the estate. It is now claimed, that in addition to this equal share in money, the words found on the margin of the diagram, “AnnWortz’s lot, 31 acres 3 perches, and allowance,” were intended as a devise to her of a lot of that size, on which she lived when the survey and will were made.

We cannot construe these words to be a devise in favour of Ann. They have neither the form nor effect of a devise. They are words of designation, intended to point out the lot she was occupying, and to show its relation to the other parts of the estate.

The diagram is, indeed, a part of the will, but that, not as a devising clause, but as a diagram — a picture of the estate on which the devising clauses of the will were to operate. To give it the effect claimed, would be to make a will for the testator — to construe words into a devise which do not import testamentary disposition (we refused to do the like in the late case of Burford v. Burford, 5 Casey 221), and to defeat that equality of distribution which was the paramount intention of the testator.

The peculiarities of Mrs. Wortz’s condition, with a large family of children and a crazy husband, are urged as reasons why a distinction should have been made in her favour; but these circumstances were for the testator to consider, rather than for us. Old Mr. Houser was well acquainted with the hardships of his daughter’s condition, and probably thought that ready money would serve her better than land; but he has given us no intimation, that he considered her entitled to receive more than an equal share with her brothers and sisters. Right or wrong in judgment, such was his will; and it is our duty to administer it as we find it, rather than to attempt to improve it by reconstruction.

If, then, this lot was not specifically devised to Mrs. Wortz, to whom is it to go ? It adjoins the part devised to Daniel, and he took possession of it in 1835, under a claim of title, and with the apparent acquiescence of all the family. Yet it is not within his lines, either as they were originally fixed or subsequently enlarged, nor is it necessary that he should have the lot to complete his quantity. The testimony is, that he has his quantity without it. The devising clause in favour of Daniel cannot, therefore, by any fair and reasonable construction, be held to embrace the lot. The diagram excludes it from his part; and there is nothing in the body of the will that imports a devise of it to Daniel more than to Ann. Nor is it devised to any one of the family. Nothing in the will or diagram or, both together, enables us to say, with any satisfaction, to which of his children the testator meant this lot should go. The consequence is, that he died intestate in respect of it. When he made the diagram, and marked out this lot so distinctly, he probably meant to make specific disposition of it; but having failed to do so, and there being no residuary clause under which it can pass, it must go, under our intestate laws, to all his heirs in equal proportions.

The plaintiffs, as heirs of Mrs. Wortz, were entitled to recover their mother’s undivided share, but no more; and the jury ought to have been so instructed.

The judgment is reversed, and a venire facias de novo is awarded.