Varner's Appeal

Mr. Justice Meruur delivered the opinion of the court, This contention arises under the will of John D. Robinson. It is whether the portion of the real estate devised to the appellant, is chargeable with the payment of a share of the annuities given to others by the same will ? The court below held her lands so chargeable, and on petition decreed accordingly. From that decree this appeal was taken. After the payment of his debts, the testator devised to trustees named, all his real and personal estate, “ in trust for the following specified purposes, and subject to the charges and annuities hereinafter stated.” He then proceeded to declare: “First, they shall annually collect and pay over to my granddaughter, Margaret Blanche Millard, daughter of Joseph and Clara Millard, the one-half the net income, rents, issues and profits of my said estate until she attains the age of twenty-five years, at which [426] time they shall make over to her by good and sufficient legal conveyances, the one-half of all my said estate for her sole and separate use in fee and in perpetuity, subject to the payment of its pro rata share of the annuities hereinafter charged upon my said estate.” Second, in like manner and by similar language, he directed them to pay over to each, William Robinson Blair, Mary Blair and James Alexander Robinson, his two nephews and niece, the one-third equal portion of the remaining one-half the rents, issues arid profits of his estate until the youngest of them should attain the age of twenty-one years, at which time the trustees should make over to “ each the equal one-third portion of the one-half of my said estate by good and sufficient legal conveyances, in fee and in perpetuity and for the sole and separate use of each one of them, subject to the payment of the pro rata share of each of the annuities hereinafter charged upon my said estate.” Third, they shall annually collect and pay over to my cousin, Mary Hays, during her lifetime, the sum of $500 per annum, out of the income, rents, issues and profits of my said estate, and before the payment of the sums devised and ordered to be paid hereinbefore to William Robinson Blair, Mary Blair and James Alexander Robinson, respectively; and- when the estate in fee shall be conveyed by my trustees to the parties last named, as hereinbefore provided, it shall be made subject to the payment of this annuity of $500 to the said Mary Hays for and during the term of her natural life, for her sole and separate use.” Item fourth in like manner directed them to pay over to his mother-in-law, Nancy Gallagher, annually, during her life, the sum of $200 out of the income, rents, issues and profits of his estate, “ before the payment of the sums hereinbefore devised and ordered to be paid respectively to William Robinson Blair, Mary Blair and James Alexander Robinson, and when the estate in fee shall be conveyed to the last-named parties,” it shall be conveyed “subject to the payment of this annuity of $200 to the said Nancy Gallagher, for and during the term of her natural life.” No subsequent item imposes any charge on the real estate devised to the appellant. The learned judge, however, thought inasmuch as the first item declared an intention of making her lands chargeable with annuities thereafter to be named, that the true intent of the will should be supplied by inserting the name of the appellant in the third and fourth items respectively. If the law will admit this addition of her name, then the court was correct. It is evident that when the first item was written the testator did intend to make the real estate devised to the appellant chargeable with the payment of a part of the annuities which he then intended to give, but he was wholly silent as to the sums to be given and to whom payable. Whether he had in his mind only the annuitants subsequently named, or whether he contemplated extending his bounty [427] to others, this item fails to disclose. The language in the third and fourth items is so clear and specific in charging the annuities of Mary Hays and Nancy Gallagher, on the lands devised to the collateral heirs, that there is no room for doubt. It expressly declares that' the lands to be conveyed to these collateral heirs, giving their full names, shall be subject to the payment of these annuities. The language in each item being so full, distinct and positive that their lands should be so charged, it would be a forced construction to assume the name of the appellant was omitted in each case through mistake. It is much more reasonable to presume that after the first item was written the testator changed his mind, and then caused the third and .fourth devising clauses to be so written as to impose the annuities on the lands of the collateral heirs only. This presumption is strengthened by the paragraph which follows the fourth. As if to give some equivalent for thus charging their lands, it declares in case of the death of Margaret Blanche Millard before the age of twenty-five years, without lawful issue of her body, then the portion devised to her shall go to and be vested in fee in the said three collateral heirs. The early childhood of the appellant, when the will was made, added to the value of this contingent estate, may have been deemed by the testator a full equivalent for subjecting their lands to the other half of the annuities. The will, however, is not so ambiguous or obscure as to require us to search for the reasons influencing the action of the testator. It is sufficient if a consideration of the whole will reasonably indicates that the testator did not intend to make the land of the appellant subject to the payment of any part of the annuities specified. We think it does so indicate. Nor is this conclusion irreconcilable with the general as well as the particular intent of the will. The language is not so inconsistent as to be incapable of being reconciled. It is true words may, in some eases, be supplied to carry out a defectively-expressed intent, but not to create another intent where one is distinctly expressed, as here, by the language of the will. They can be supplied only in cases necessary to give effect to the most unquestionable purpose of the testator: 1 Red-field on Wills 470. Hence, if a doubt arises that the change would advance the real intent of the testator, it cannot be made : Annable v. Patch, 3 Pick. 360. Besides, in a doubtful case, we should adhere, as closely as the language will permit, to the general rules of inheritance: France’s Estate, 25 P. F. Smith 220. The appellant being the heir at law, every fair intendment of construction should be made in her favor: Bender v. Dietrick, 7 W. & S. 284; Cowles v. Cowles, 3 P. F. Smith 175. The learned judge therefore erred in holding the language of the first item to be sufficient to justify the addition by the court of the name of the appellant to the third and fourth devising clauses, and thereby imposing an additional liability on her. [428] The trust is an active one. The appellant has not attained the age when she will be entitled to take the property out of the hands of her trustees. The court, therefore, committed no error in allotting the purpart to her trustees, and not to her personally. The purpart so allotted ought not to be subject to the payment of any part of the annuities. They must be charged wholly on the property allotted to the appellees. Decree reversed, and record remanded, with instructions to decree conformably with this opinion. The costs of this appeal to be paid by the appellees.