Sauer v. Mollinger

22 A. 89, 138 Pa. 338, 1890 Pa. LEXIS 1284

• Court: Supreme Court of Pennsylvania
• Decided: November 10, 1890
• Docket: No. 137
• Status: Published

Opinion

Per Curiam :

The first assignment of error does not conform to the Rules of Court. The second assignment, however, is to the decree of the court, and fully covers the case.

It may be, as was contended by appellant, that when John Kleinhenz directed by his will that his daughter Magdalena should pay the sum of three hundred dollars to his daughter Catharine, he intended that his daughter Margaretha should pay it, and inserted the name of Magdalena by mistake. It would, however, be a heroic mode of construing a will, to strike out the name of one devisee and insert that of another, or to hold that when the testator directed one daughter to pay a sum of money he intended that another daughter should pay it.

There is no ambiguity in this will. The reason given why Magdalena should pay the money is not very clear, it is true, hut the language is plain and grammatically correct. Aside from this, the will imposes no charge upon the land devised to Margaretha, and would not do so if we were to insert her name instead of Magdalena. The will would then read: “ And, as the value of the property so bequeathed to her exceeds the value of the property by me bequeathed to my daughter Cath-arine, I direct that my said daughter Margaretha shall pay to my said daughter Catharine the sum of three hundred dollars.” This is a mere personal charge, and did not bind the land.

No question was raised as to the jurisdiction. Had there been, we would have sustained it without hesitation. While we have decided the case as it stands, we are not willing it should be used as a precedent hereafter, upon this question.

The decree is affirmed and the appeal dismissed at the costs of the appellants.