Opinion by
Mb. Chief Justice Paxson,
The contention in this case arises upon the following clause of the will of Eveline Gross, deceased:
“ I hereby bequeath and devise to my said adopted daughter, Mathilda Gross MacConnell, all the rest and residue of my estate, real, personal and mixed, absolutely and in fee simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise. And it is my will that said Mathilda Gross MacConnell shall take and hold the property hereby given to her, free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control.”
The question we are now called upon to determine is, whether, under the will of Eveline Gross, a separate use is created as to the property devised by the residuary clause above cited.
We feel somewhat embarrassed by the fact that, in MacCon[282]*282nell v. Lindsay, 131 Pa. 476, this very question was before us, arising upon the same will, and we there held that the paragraph above quoted did create a separate use. It is proper to say, however, that the question pressed upon us at that time was the effect of the Act of 1848, and the Married Person’s Property Act of June 3, 1887, upon separate use trusts. The intention of the testatrix, as gathered from the whole will, and from the circumstances surrounding her and her estate, was entirely overlooked or ignored in that case. This sufficiently appears from the report of it in 131 Pa., and especially from the very able and elaborate opinion of our late brother Clark, in which he shows in a very conclusive manner that it was not intended by the Acts of Assembly referred to to abolish separate use trusts. Seven pages of that opinion were devoted to this subject, while only a part of a page referred to Mrs. Gross’s will. It may be conceded that the words “ And it is my will that the said Mathilda Gross MacConnell shall take and hold the property hereby given to her free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her .own use and benefit, and subject to her own control,” if standing alone, are sufficient to create a separate use. This is really all that was decided in MacConnell v. Lindsay.
The question now comes up in a suit between different parties ; and, with the facts agreed upon in the case-stated, as now presented, it differs radically from MacConnell v. Lindsay. It is our duty to declare the law as required by the changed circumstances, even though it should subject us to criticism on the part of those who do not look beneath the surface.
Eveline Gross, the testatrix, was the childless widow of the late Dr. A. H. Gross, of the city of Pittsburgh. Mathilda Gross MacConnell was her adopted daughter, and the principal object of her bounty. By the second paragraph of her will she gave to her said adopted daughter all her personal property, consisting of notes, bonds, mortgages, stocks (except certain bank stock), moneys, plate, jewelry, diamonds, pictures, household furniture, and all other personal estate whatsoever. Then follows a number of legacies and gifts to collateral relatives and others, including some charitable bequests. By the sixth paragraph of her will, she devised the homestead property, of which she [283]*283was entitled, containing about ten acres, to her said adopted daughter, and concludes the devise with these words: “And it is my desire and earnest request that she shall retain and occupy the same as a homestead for herself and family, as long as she possibly can, and I direct that the said homestead shall not be sold, or in any manner made liable for the payment of my debts, or for the payment or discharge of any legacy or other liability, created by this will.”
After expressing this earnest desire, that the homestead should be retained as a residence by her adopted daughter, she proceeds to give the latter a power of sale in the following words: “ I hereby authorize and empower my executrix (the appellant) to sell, mortgage, or otherwise convey and dispose of any real estate of which I may die seized (except the aforesaid homestead property) for the payment of debts or legacies, and the due administration and settlement of my estate, and purchasers from her shall not be liable for or bound to look to the application of the purchase money which .they may pay to her upon such purchase or mortgages.”
Then follows the residuary clause before mentioned, after which the testatrix appoints the said Mathilda Gross MacConnell executrix of her will.
The testatrix must be presumed to have understood the extent and value of her estate at the time she made her will. The nature and character of said estate, as it existed at the time of her death, fully appears in the case-stated. From that we learn that she left personal estate, consisting of money, mortgages, notes, and bank stock, amounting in the aggregate as per appraisement to $86,807.62. She also left unimproved real estate in the Twentieth ward of the city of Pittsburgh, consisting of twenty-six different tracts, which, prior to the death of the testatrix, she had laid out into lots. This property is extremely valuable, but yields little income. For the six years prior to the death of Mrs. Gross, the city and county taxes on this property averaged nearly $2,000 per year. Since her death, the taxes have been increased, amounting in 1891 to $8,485.01, while the income derived therefrom has at no time exceeded $1,800 per annum. In addition, claims for municipal improvements to a large amount have been filed against the property. The collateral inheritance tax due upon it at Mrs. [284]*284Gross’s death amounted to $10,384, which was subsequently-paid. The practical result is, that the personal estate bequeathed to Mrs. MacConnell has been entirely exhausted in the payment of the general legacies, collateral inheritance tax, debts, and the expenses of the • administration, leaving Mrs. MacConnell with a large and expensive homestead to keep up, not only without any income to do so, but with large annual charges for taxes, etc., against unimproved property, in addition to municipal assessments.
Assuming, as we have a right to do, that Mrs. Gross was thoroughly cognizant of the condition of her estate when she made her will, the inquiry suggests itself, whether it is probable she intended to embarrass the estate by creating a separate use. It will be observed, that in the seventh paragraph of the will, the clause which it is claimed creates the separate use, is preceded by a devise of the estate to her adopted daughter, “absolutely and in fee simple.” This language is certainly very emphatic, and when we consider' that the sixth section preceding, contains a broad and absolute power of sale, with the provision that the purchasers shall not be bound to look to the application of the purchase money, the intention of the testatrix to create a separate use, may be more than doubted.
It is settled by abundant authority that the circumstances surrounding a testator at the time he makes his will may be considered in construing it: Postlethwaite’s Appeal, 68 Pa. 477; Bernhardt v. Riddell, 29 Pa. 97; Aldridge v. Eshleman, 46 Pa. 420; Sparks’ Appeal, 89 Id. 152; Webb v. Hitchins, 105 Id. 95; Jacobs’ Estate, 140 Id. 268.
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Opinion by
Mb. Chief Justice Paxson,
The contention in this case arises upon the following clause of the will of Eveline Gross, deceased:
“ I hereby bequeath and devise to my said adopted daughter, Mathilda Gross MacConnell, all the rest and residue of my estate, real, personal and mixed, absolutely and in fee simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise. And it is my will that said Mathilda Gross MacConnell shall take and hold the property hereby given to her, free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control.”
The question we are now called upon to determine is, whether, under the will of Eveline Gross, a separate use is created as to the property devised by the residuary clause above cited.
We feel somewhat embarrassed by the fact that, in MacCon[282]*282nell v. Lindsay, 131 Pa. 476, this very question was before us, arising upon the same will, and we there held that the paragraph above quoted did create a separate use. It is proper to say, however, that the question pressed upon us at that time was the effect of the Act of 1848, and the Married Person’s Property Act of June 3, 1887, upon separate use trusts. The intention of the testatrix, as gathered from the whole will, and from the circumstances surrounding her and her estate, was entirely overlooked or ignored in that case. This sufficiently appears from the report of it in 131 Pa., and especially from the very able and elaborate opinion of our late brother Clark, in which he shows in a very conclusive manner that it was not intended by the Acts of Assembly referred to to abolish separate use trusts. Seven pages of that opinion were devoted to this subject, while only a part of a page referred to Mrs. Gross’s will. It may be conceded that the words “ And it is my will that the said Mathilda Gross MacConnell shall take and hold the property hereby given to her free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her .own use and benefit, and subject to her own control,” if standing alone, are sufficient to create a separate use. This is really all that was decided in MacConnell v. Lindsay.
The question now comes up in a suit between different parties ; and, with the facts agreed upon in the case-stated, as now presented, it differs radically from MacConnell v. Lindsay. It is our duty to declare the law as required by the changed circumstances, even though it should subject us to criticism on the part of those who do not look beneath the surface.
Eveline Gross, the testatrix, was the childless widow of the late Dr. A. H. Gross, of the city of Pittsburgh. Mathilda Gross MacConnell was her adopted daughter, and the principal object of her bounty. By the second paragraph of her will she gave to her said adopted daughter all her personal property, consisting of notes, bonds, mortgages, stocks (except certain bank stock), moneys, plate, jewelry, diamonds, pictures, household furniture, and all other personal estate whatsoever. Then follows a number of legacies and gifts to collateral relatives and others, including some charitable bequests. By the sixth paragraph of her will, she devised the homestead property, of which she [283]*283was entitled, containing about ten acres, to her said adopted daughter, and concludes the devise with these words: “And it is my desire and earnest request that she shall retain and occupy the same as a homestead for herself and family, as long as she possibly can, and I direct that the said homestead shall not be sold, or in any manner made liable for the payment of my debts, or for the payment or discharge of any legacy or other liability, created by this will.”
After expressing this earnest desire, that the homestead should be retained as a residence by her adopted daughter, she proceeds to give the latter a power of sale in the following words: “ I hereby authorize and empower my executrix (the appellant) to sell, mortgage, or otherwise convey and dispose of any real estate of which I may die seized (except the aforesaid homestead property) for the payment of debts or legacies, and the due administration and settlement of my estate, and purchasers from her shall not be liable for or bound to look to the application of the purchase money which .they may pay to her upon such purchase or mortgages.”
Then follows the residuary clause before mentioned, after which the testatrix appoints the said Mathilda Gross MacConnell executrix of her will.
The testatrix must be presumed to have understood the extent and value of her estate at the time she made her will. The nature and character of said estate, as it existed at the time of her death, fully appears in the case-stated. From that we learn that she left personal estate, consisting of money, mortgages, notes, and bank stock, amounting in the aggregate as per appraisement to $86,807.62. She also left unimproved real estate in the Twentieth ward of the city of Pittsburgh, consisting of twenty-six different tracts, which, prior to the death of the testatrix, she had laid out into lots. This property is extremely valuable, but yields little income. For the six years prior to the death of Mrs. Gross, the city and county taxes on this property averaged nearly $2,000 per year. Since her death, the taxes have been increased, amounting in 1891 to $8,485.01, while the income derived therefrom has at no time exceeded $1,800 per annum. In addition, claims for municipal improvements to a large amount have been filed against the property. The collateral inheritance tax due upon it at Mrs. [284]*284Gross’s death amounted to $10,384, which was subsequently-paid. The practical result is, that the personal estate bequeathed to Mrs. MacConnell has been entirely exhausted in the payment of the general legacies, collateral inheritance tax, debts, and the expenses of the • administration, leaving Mrs. MacConnell with a large and expensive homestead to keep up, not only without any income to do so, but with large annual charges for taxes, etc., against unimproved property, in addition to municipal assessments.
Assuming, as we have a right to do, that Mrs. Gross was thoroughly cognizant of the condition of her estate when she made her will, the inquiry suggests itself, whether it is probable she intended to embarrass the estate by creating a separate use. It will be observed, that in the seventh paragraph of the will, the clause which it is claimed creates the separate use, is preceded by a devise of the estate to her adopted daughter, “absolutely and in fee simple.” This language is certainly very emphatic, and when we consider' that the sixth section preceding, contains a broad and absolute power of sale, with the provision that the purchasers shall not be bound to look to the application of the purchase money, the intention of the testatrix to create a separate use, may be more than doubted.
It is settled by abundant authority that the circumstances surrounding a testator at the time he makes his will may be considered in construing it: Postlethwaite’s Appeal, 68 Pa. 477; Bernhardt v. Riddell, 29 Pa. 97; Aldridge v. Eshleman, 46 Pa. 420; Sparks’ Appeal, 89 Id. 152; Webb v. Hitchins, 105 Id. 95; Jacobs’ Estate, 140 Id. 268.
A separate use always means an equitable estate, as distinguished from a legal estate: Todd’s Appeal, 24 Pa. 431. In Ringe v. Kellner, 99 Pa. 460, it was said that the incidents of such an estate are “ peculiar and undesirable.” Be that as it may, the creation of a separate use is always a question of intention to be gathered from the four corners of the will, as well as from the circumstances surrounding the testator at the time he made it, and from the condition of the estate and his family. The question, whether the testator has created a separate use trust estate, or a legal estate in fee simple, is alwaj’-s one of intention, but the burden is upon those claiming he intended to create a separate use trust estate, to show this by [285]*285language clearly indicating sucb intent: Morrison v. Dollar Savings Bank, 36 Legal Intelligencer, 215; Rank v. Rank, 120 Pa. 195.
From the broader light thrown upon this question by its re-argument. and from the facts as embodied in the case-stated, we are now constrained to hold that Eveline Gross, the testatrix, did not intend to create a separate use as to the property devised to Mathilda Gross MacConnell.
The judgment is reversed, and judgment is now entered for the plaintiff in the case-stated in the sum of four thousand, four hundred and thirty-four and fifty one-hundredths dollars, with interest.
Mb. Justice Stebbett dissents.