Johnson's Appeal

Mr. Justice Gordon delivered the opinion of the court, February 3d 1879. Mrs. Jane Johnson, by her will, probated November 15th 1862, devised to her executors, the appellees, the property in question, to [353] be by them held in trust, to collect the rents, issues and profits thereof, and pay the same over, after deducting taxes and other necessary expenses, to her son, Samuel B. Johnson, for and during the term of his natural life. After thus having clearly indicated the use to which the property should be appropriated during the life of her son, she, in a very succinct and intelligible manner, disposes of the remainder as follows, to wit: “And upon and immediately after the death of my son, Samuel B., to assign, grant and convey the said real estate to such person or persons, and for such estate or estates, and in such proportions, as would, by the intestate laws of this Commonwealth, be entitled to the same if he had died intestate seised thereof in fee.” In all this the intent of the testatrix is unmistakable: her main object is to provide for her son for life; this covers her principal anxiety, as will appear by the will itself, made in 1857, as well as by the codicil executed some five years thereafter. After he is gone, her chief intent is fulfilled, and she casts the remainder over to the disposition of the intestate laws, to go not to any particular class, stalk or stirp, and not to her blood, near or remote, but to such person or persons as would, by the above-named laws, be entitled to the same, had Samuel B. Johnson died intestate and seised thereof in fee. Suppose, then, he had died intestate, seised in fee of this disputed property, w'ho, under the intestate laws of this Commonwealth, would be entitled to the same ? Certainly his adopted child, Ann B. F. Johnson. If not, then is the Act of 1855 of no force; for it declares that, upon fulfilment by the parties interested of the requisites prescribed, the court shall decree “that such child shall assume the name of the adopting parent, and have all the rights of a child and heir of such adopting parent, and be subject to the duties of such child.” Thus we see that the appellant is, so far as legislative power can so make her, both child and heir of Samuel B. Johnson, and if notwithstanding she yet cannot inherit her adopted father’s estate, it is because the courts, under the name of judicial interpretation, have repealed the statute. She is not, it is argued, of the blood of the testatrix, and therefore the testatrix did not intend to vest in her this remainder. But this is an imaginary intent, evolved for the occasion — o.ne which Mrs. Johnson, if we regard her words, never entertained. She is careful to use no word by which the operation of the intestate laws might bo limited: to such person or persons as would, by the intestate laws of this Commonwealth, be entitled to the same, had he died intestate seised thereof in foe, is her emphatic language, twice repeated in this same will. There is, therefore, nothing left for conjecture. If, as was said by our brother Mercur, in McGunnigle v. McKee, [354] 27 P. F. Smith 81, one who makes a will is presumed to act in view of the power of the legislature to legitimate a bastard and make it an heir, much more will it be presumed that one making a will acts in view of laws already made, by which a child may be adopted and thus made an heir. One of two things may be regarded as reasonably, certain in this case: either Mrs. Johnson did know and understand the intestate laws, to which she so distinctly and emphatically refers, and so must have known that her son had the power to introduce into the succession one not of her blood, or she' was indifferent as to what might become of the residue of her estate after her son’s death, and therefore intrusted the disposition thereof to those laws, without caring to inform herself particularly concerning their provisions. In the one case, she acted in view of the possible occurrence of what has happened, and in the other, she cared not what the result might be;' in either case, nothing remains but to give her words their legal and reasonable meaning and force, and thus invest the appellant with the title and possession of the property which rightfully belongs to her. It is now ordered, adjudged and decreed, that the decree of the court below dismissing the plaintiff’s bill with costs, be now reversed and set aside; and that so much of the estate late of Mrs. Jane Johnson, deceased, as was by her will vested in trustees during the life of Samuel B. Johnson, and which, “upon and immediately after his death, was to be assigned to such person or persons, for such estate or estates, and in such proportions, as would, by the intestate laws of this Commonwealth, be entitled to the same, if he had died intestate, seised thereof in fee,” be now conveyed in fee. by said trustees, to Ann B. E. Johnson, adopted child and heir of Samuel B. Johnson, deceased, and that any income on hand or securities held by said trustees, and which ought of right to pass to the guardian of the said Ann B. E. Johnson, be now transferred and paid over to said guardian. Ordered further, that the costs be paid by the appellees.