Schneider's Appeal

The opinion of the court was delivered June 2, by Coulter, J. The primary intent of the testator, to wit, that his whole estate, real and personal, shall be equally divided among his nine children, is quite apparent from the whole will. In the clause before the last, he directs that his real estate shall vest in his two sons, Daniel and Joseph, but that they shall not take immediate possession after his death if his wife survives him. But, that after his death, and upon the death of his widow, or her marriage, they shall enter on the real estate and divide it between themselves as they deem suitable. He further provides in the same clause, that his two sons shall pay two thousand pounds, to be divided into nine equal shares, and that each of them, enumerating them by name, including the two sons to whom the real estate is divided, shall have share and share alike. In the next clause he directs that all his goods, money, and outstanding money and bank-stock, after the death or marriage of his wife, shall be equally divided among his nine children; and then directs that if his wife marries, she shall, in that event, receive what she is entitled to by law out of the real estate, which shall be paid to her by his two sons. Testator had nine children, two of them sons, to whom the real estate is divided, and seven daughters. The clause of the will on which the claim of the daughters is built, occurs in a previous part of the instrument, and is as follows, to wit: — “As each of my married daughters have already received one hundred pounds on account of their future inheritance, without being obliged to pay interest for the same, so it is my will that the rest of my daughters shall also receive one hundred pounds on the same account whenever they marry, and should require the money to purchase real estate, without being obliged to pay interest therefor.” This clause is perfectly consistent with the subsequent ones which dispose of his estate in equal shares among his nine children by name. It was a mere advancement to the daughters at the time of their marriages respectively. Although there is no technical advancement in cases of testacy, yet, a testator may provide the same equality and equity in his will which is accomplished by the technical advancement in cases of intestacy. Here the testator intended that his daughters should each receive one hundred pounds as they married, in addition to some outfit always 'given on such occasions, because this one hundred pounds would be useful in providing a present home. But then, as distinctly' as language could express it, he provides that this sum was on account, or to be on account of their future inheritance. That is, on account of their equal share of his estate, which he provided in the same will they [412] were to receive out of his real and personal estate. But the rivet is clenched by the provision that they shall not be obliged to pay interest for the one hundred pounds; clearly evincing his intent that the principal should be paid in the mode he pointed out, that is, by being accounted for in their future inheritance. And this corresponds and tallies with the two last clauses, directing that his estate shall be divided in equal shares among his nine children. There is no evidence to justify the averment that the sons were largely preferred. The two thousand pounds may have been, for aught we know, the value of the estate. But if the widow married, they were bound to .pay her dower; and in that event would have been so much worse, to that extent, than the girls. But this is no consequence. . We heed not these things, because the intent of the testator, if it be not against law, must be carried out, whether it accords with usage or general or particular feeling. The question before the Orphans’ Court was, whether the sons were entitled each to one hundred pounds, so as to be made equal with the daughters who had received that sum before distribution equally among all of them. The court below decreed that they were not, and in that we think they erred. The decree is therefore reversed, and it is ordered and decreed that the sons each receive one hundred pounds, so as to make them equal with the daughters, and that the balance be equally distributed among the sons and daughters. And the record is remitted to the Orphans’ Court for the purpose of carrying out this decree.