Eavenson's Appeal

Mr. Justice Paxson delivered the opinion of the court, The second, third and fifth assignments of error raise the question whether George Wood, one of the accountants, is under any duty to account for certain sums' of money received by him and by his wife for George Eavenson, the testator. There is no dispute about the facts. It is conceded that the sums of money in question were paid to Mr. Wood, or to his wife, in the presence of the testator and by his direction. This, the appellant contends, is .sufficient to cast upon Mr. Wood the duty of accounting in some way for the money. The learned auditor declined to surcharge him with these payments, in which he was sustained by the Orphans’ Court. We see no error in this ruling. The payments referred to were payments to George Eavenson. That they were received by the hands of his daughter or her husband is not material. The money was paid in the presence of the testator. The Woods were merely his servants so far as these transactions were concerned. In the absence of any evidence to the contrary the money must be presumed to have passed into the actual possession of the testator. If the Woods embezzled it, that fact must be shown. The law raises no such presumption. We do not think the attempt to surcharge Mr. Wood with the rent of the farm for the last ten years of the life of the testator can be sustained. This is not the case of a tenant who has bound himself to pay a certain rent. It appears that in 1860 the wife of George Eavenson, the testator, died. At that time he was about seventy-eight years of age. Shortly after the death of Mrs. Eavenson, Mrs. Wood, a daughter of this aged couple, removed with her husband to the dwelling of the testator. Mr. Wood took charge of the farm ; Mrs. Wood attended to the domestic arrangements. The testator had become infirm, and he lived in the family of his son-in-law. No agreement in writing appears to have been entered into, but the arrangement between them sufficiently appears by the testimony of Samuel Oann. He says: “ George got one-third of the grain; old man found all the meat and flour; he had the profit of feeding steers; Wood had the profit of cows and chickens; Wood found groceries; I had this from old man and Wood both.” From this it is manifest that Wood was a mere cropper. The testator remained in possession; lived with his son-in-law, and contributed to the expenses of the house. Each was to have a certain share [177] of the products of the farm. Each was upon the premises to look after his own. In the absence of any evidence to the contrary, each must be presumed to have received his own.. We see no more reason why Wood should account for the testator’s share than that the testator should account for Wood’s share. It would seem incredible that this testator should have failed in getting his share of the crops for the ten years that he lived with his son-in-law. That he did receive his share, appears with reasonable certainty from his own books, in which is set forth his income from farming operations for several years of the period referred to. There is a-debtor and creditor account carefully kept, showing the amount of produce received and the prices realized therefor. It is not material that this account was kept for the purpose of enabling the testator to make his income return. It is sufficient that it was the testator’s account; that it shows that he received and sold his share of the produce, and that it has not been contradicted. The seventh and eighth assignments present a question of more difficulty. Briefly stated it is whether the debts and legacies are to be paid out of the personal estate, or from the real estate devised to Joseph Eavenson. That the personal estate is the primary fund for the payment of debts and legacies is horn book law. A testator may, however, direct otherwise: McFait’s Appeal, 8 Barr 290. Has the testator evinced a clear intention not only to charge the debts and legacies upon tl;e real estate of Joseph, but also to exonerate the personal estate ? He first directs that “ all my debts and funeral expenses be paid as soon after my decease as possible, out of'the first money that shall come into the hands of my executors.” He then makes sundry bequests of $500 each to grandchildren, and the interest of $1400 to his daughter Phebe Foreman for life, said sum to remain in the testator’s real estate. He then devises certain real estate to his daughter Mrs. Wood and her husband. This devise is expressly stated to be “ clear of all encumbrances.” Then follows a devise to his son Joseph of “ the balance of my real estate subject to the payment of all my debts and the amount of money hereinbefore mentioned as bequeathed to the children of Ann Boothe, Sidney Hannum and Phebe Foreman, the amount fourteen hundred ($1400) dollars before mentioned to lay in this real estate, and the interest to be regularly and annually paid to her during life, and at her death to be disposed of as before mentioned.” Then comes the bequest of the residue, in these words: “ After all debts and bequests are paid, it is my will that should there be any reversions, that they be equally divided between my son, Joseph Eavenson, and my daughter, Lydia, and son-in-law, George Wood,, executors of this my last will and testament.” There is an apparent repugnancy in these provisions. It is our duty to give effect to the intention of the testator so far as it can be ascertained and to reconcile seeming inconsistencies. One thing is clear. [178] The testator intended that in no event should the real estate devised to the Woods be charged with the debts and legacies. He says .that said real estate shall be clear of all encumbrances. On the other hand the devise of the residue of his real estate to his son, Joseph, is subject to all the testator’s just debts, and the legacies referred to. It is provided that the sum of $1400, the interest of which is payable to Phebe Foreman, “ shall lay in this real estate.” What did the testator mean by this clause in his will ? The auditor and the court below held that he intended to charge Joseph’s real estate as the primary fund for the payment of debts and legacies and to exonerate the personal estate altogether. In reaching this conclusion the learned judge of the Orphans’ Court assumes that the testator intended equality among his children. I am unable to gather such intention from the will. It nowhere appears that ho contemplated making one child equal with any other child. On the contrary he gives his daughter, Mrs. Foreman, only the interest of $1400 during life. To the children of his deceased daughter Ann, he gives $2000, and to the child of his daughter Sidney, he gives only $500, while to his daughter Lydia he gives a valuable farm clear of encumbrances. No reason is given for such distinction. No doubt a- satisfactory one existed. Be that as it may, it disposes of the idea that the testator intended equality. Did he intend to exonerate his personal estate from the payment of debts and legacies ? It is not enough to show that he charged them upon a portion of the realty. It must also appear that he intended to exonerate the personalty. It is not the intention to charge the real estate that exempts the personal, for charging the real estate without more, will not have that effect. It must appear, not only that the real estate is intended to be charged, but that' the personal estate is intended-to be exempted : 1 Roper 6991 The rule is thus clearly stated in Breden v. Gilliland, 17 P. F. Smith 34: “ The primary fund for the payment of all legacies, whether charged on land or not, unless special provision is made to the contrary, is the personal estate.” It was formerly held that 6 the intention to exempt the personalty must be expressly declared. Such is not the rule now. It is sufficient if it appear by necessary implication, collected from a sound interpretation of the whole will. I have looked in vain through the will of George Eavenson for any evidence of a clear intent to exonerate his personal estate from the payment of debts and legacies. On the contrary the opposite view may not unfairly be gathered from his direction to pay his debts and funeral expenses out of the first money that should come into the hands of his executors, and the bequest of the residue, after the payment of debts and legacies. These provisions of the Avill are inconsistent with the idea of exempting the personalty. In charging the real estate of Joseph with the payment of debts and legacies, the testator probably intended no more than to make said [179] real estate an auxiliary fund, to be resorted to after the exhaustion of the personal estate, which is the primary fund. In addition, the testator did not intend that any portion of the debts and legacies should fall uppn the real estate devised to Mr. and Mrs. Wood. That was to be “clear of encumbrance.” He provided effectually against such contingency by making Joseph’s real estate an auxiliary fund to the .personal estate. The amount of personal estate appears to be more than sufficient to pay debts and legacies. After the payment of all debts and legacies the balance of personal estate must be distributed under the residuary clause of the will. In this distribution Joseph Eavenson will be entitled to a credit for any portion of the legacies remaining as a charge upon his land. The decree is reversed, and the record remitted to the .Orphans’ Court, with directions to proceed to make distribution in accordance with the views contained in this opinion; the costs of this appeal to be paid by the appellee.