Urich's Appeal

Chief Justice Agnew delivered the opinion of the court, [390] The will of Jacob Stoudt is brought before us a second time, in the hope of changing our opinion upon it. That opinion, though expressed in a short per curiam, to be found in 2 W. N. C. 650, was maturely formed. Its brevity is not evidence of want of examination, but of the necessity of condensation where there is so much to do. The able arguments of the counsel for the appellants have not changed our deliberate interpretation of the devise to John Stoudt. We agree with all said upon the first expression of this devise, if the testator intended to give him a fee, and used the word heirs in its legal acceptation. But that intention is the pivot of the question and must be carefully gathered from all parts of the will. The first point of notice is, that on its face it appears that the will was not written by a learned lawyer, or a skilful conveyancer. Hence the language is not so conclusive of intent. The next matter is the evident intent of the testator to equalize his children in a general way; and the portion of John, the only son, is much larger than those of his sisters. John takes his “large farm” of three hundred acres, the grain seeded out, and all farming stock and utensils; Catharine,'two parcels containing two hundred and twenty-five acres, and pays thereout $4300 to her sisters Sarah, Polly and Harriet, and they take smaller farms; Sarah one hundred and thirty-seven acres, Polly one hundred and ten acres and Harriet one hundred and eighteen acres. All the personal estate is then divided equally among the five children, John, Catharine, Sarah, Polly and Harriet, excepting additional to Polly and Sarah, $909 and $1000. It is thus evident that the charge of $4300 against Catharine’s land was to produce equality of division, the children of Catharine taking the advantage of the increased size of her farm. With this exhibition of general intent we come to the special intent.of the testator, as to the quantity of estate limited to his children. It is brought out clearly in the fourth and second items from the end of the will. The fourth is in these words : “I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children, shall have the use, income and profit of the said lands and farms during their lifetime.” Now if we treat the word “heirs” in the principal devise to John Stoudt as conclusively descriptive of the quantity of his estate, the entire item first quoted is clearly repugnant and nugatory. But we cannot do this if by any proper interpretation the items can he reconciled. To hold to the legal and technical meaning of the word “heirs” we must assume that the testator was grossly ignorant of his own intent, and of the law also, when he came to [391] the quoted item. If this item contained the first two clauses only, perhaps we might reach this result, for then we should have only a technical term interpreted by the law (Criswell’s Appeal, 5 Wright 288), and a mere attempt to clog the fee with illegal conditions. But when we reach the last two clauses in the same item, equally parts of the same thought and expressed uno flatu, we perceive we cannot do this without violating a clear intent of the testator fully and distinctly expressed. Thus he says, without break in the sentence, “ But the lands shall remain free for their children or heirs.” Here we have the clue to the prohibition against alienation and encumbrance. Why shall they not alien or encumber ? Because, says the testator, my will is the estate shall remain free (unaffected by these, acts) for their children. It is argued this purpose is defective, for grandchildren would not take if a parent died before the testator. This is against a settled rule that “ children” will include grandchildren where it is necessary to serve the intent of the testator : Dickinson v. Lee, 4 Watts 82; Pemberton v. Parke, 5 Binn. 601. Various readings of the word “ children” will be seen in the citations in Yarnall’s Appeal, 20 P. F. Smith 341. This clause further interprets the word “heirs.” Here children, the primary word, precedes “heirs,” the secondary, and the latter, as the alternative of the former, expresses the testator’s own thought. Yet this clause standing alone might still leave the intention liable to some contest. But it is followed by another part of the same united sentence, leaving the intent free of all doubt. Thus — “ and they my said children shall have the use, income and yorofit of the said lands and farms during their lifetime.” Here we have two express declarations of intent: 1. The subject of the children’s devise is clearly defined — the precise interest of a life-tenant by the use, income and profits of the lands. Thus the usufructuary interest alone is given, and this is all a life-tenant can take. Not content with defining the subject, he becomes finally and fully explicit, and expressly defines the term or duration of the estate itself viz., “during their lifetime.” Now the full meaning and intent of the testator is fully developed and clearly expressed. His own children shall have the use, income and profits of the lands devised for life only, without power to alien or encumber, in order that these lands shall remain after their death for their children. Then follows the item next to the last, which confers a power to dispose by will. Here comes in another thought of the testator, perfectly natural and obvious. Remembering that one daughter is unmarried, and that some of his married children may die without leaving children, or that their children may differ in merits or be unequally provided for, and that he has just prohibited his devisees from enjoying more than a life-estate, he thinks of these contingencies, and now gives a power of appointment by will; and to [392] express this intent more distinctly, says, “ to take effect after their decease.” This is the crowning sheaf of his intention, and shows that he did not intend to give a fee-simple when he used the word “heirs” in the principal devise, as his own alternative expression for “children,” or possibly with a vague conjecture of its meaning. If he used it in a general way, it is plain he clearly defined and restricted it, in the clause we have been considering, and the rule is that between repugnant clauses in a will the last shall govern. Our former decision must therefore stand, with these further reasons for it. Decree of the Orphans’ Court dismissing the petition affirmed, with costs to be paid by the appellants, and their appeal is dismissed.