Lewis's Appeal

Mr. Justice Sterrett delivered the opinion of the court, May 5th 1879. The fund for distribution in this case represents real estate, and the question is, what interest, if any, did Hopkins Skiles take under the residuary clause of his cousin’s will? The testator, after giving sundry pecuniary legacies, and directing his executors to sell sufficient real and personal estate to pay debts and legacies, disposed of the residue of his estate in the following words: “Also, all the balance of my property, personal and real, I give and bequeath to my sister, Susanna Skiles, her lifetime, and at her death it is my desire that a part of it go'to Hopkins Skiles and his heirs.” The learned judge of the Orphans’ Court held that the bequest of a part was void for uncertainty; that as to the residue of his estate, subject to the life-estate given to his sister, the testator died intestate; that immediately upon his decease, the same vested in her as his next of kin under the intestate law, and consequently she took the entire residue absolutely, instead of a life-estate therein. This, of course, resulted in a decree in favor of the executor of Susanna Skiles, from which the administrator of Hopkins Skiles took this appeal. If the bequest was void for uncertainty, it is conceded the decree is correct. On the part of the appellant, however, the contention is that the bequest was valid, and that his intestate took, under the will, at least one-half of the residuary estate. The first paragraph of the will contains the usual declaration of intention by the testator to’ dispose of his entire estate; but it is manifest from the residuary clause that he did not fully carry out [513] his original purpose. In the first part of this clause, he gave, in express terms, a life-estate to his sister; and if he had stopped there, it is very clear that the entire remainder, at the termination of the life-estate, would have been, undisposed of and would have passed, as in case of intestacy, to his next of kin. It appears, however, that this was not his will, for in the same breath he expresses a desire that a part of the remainder should then go to his cousin, Hopkins Skiles, but he made no disposition of the other part. It must be presumed that the testator knew what the effect of this partial disposition of the remainder would be, viz., that the undisposed of part or portion would pass,.under the intestate law, to his sister, as his next of kin. We have, then, the clearly-expressed intention of the testator to give the residue of his estate to his sister for life, and, at her death, a part or portion thereof to his cousin, leaving the remaining part undisposed of, so that upon his decease it would vest absolutely in her. If, then, after carving out the life-estate, the testator declared that' a part of the remainder should go to his cousin, and knew that the law would give the undisposed of part to his sister, in what proportions did they take, the one under the will and the other under the intestate law ? Under the circumstances, it is manifest that not more than the two could participate, and hence the remainder was to be parted or divided between them; and in the absence of anything to indicate an unequal division, the presumption is that equality was intended; that the testator used the word part as synonymous with moiety, a sense in which it is sometimes popularly employed in speaking of a division between two. If he had said that one part should go to his cousin and the other to his sister, it would certainly be construed to mean an equal distribution between the two. What difference can it make that he expressly gave a part to Hopkins, and so drafted his will that by his silence as to the other part it would go to his sister ? He is presumed to have known that this would be the effect, and to have had the result in contemplation when he published his will. Giving effect, then, to the will, so far as it speaks, and appealing to the intestate law as to that wherein the will is silent, we reach the conclusion, that Hopkins took one part- under the will, and the sister the other part under the intestate law. In other words, the remainder, subject to the life-estate, vested in the two, each taking a separate portion or interest, and presumptively an equal share. Equality is equity, and where distribution is to be made among two or more, without anything to indicate the proportions in which they are to take, the presumption is that the shares are to be equal. Salisbury v. Denton, 3 Kay & J. 529, bears some resemblance to the present case. There the testator bequeathed property to be at the disposal of his wife, to apply a part to such charitable endowment, for the benefit of the poor of Offley as she might prefer, and [514] the remainder to be at her disposal among his relations, in such proportions as she might direct. Here two classes were contemplated, and it was held that the property so bequeathed was divisible in two equal parts, one of such parts for charitable purposes, and the other for the child of the testator absolutely. It appears to us that the construction of the will above indicated is not unnatural or unreasonable. It gives full force and effect to every word it contains, and at the same time contravenes none of its provisions. If we were to hold that the bequest of a part of the remainder to Hopkins Skiles was void for uncertainty, it would defeat the clearly-expressed intention of the testator to make him one of the objects of his bounty, and at the same time result in giving testator’s sister more than he intended she should have. Both of these results should be avoided, if it can be accomplished without doing violence to the language employed by the testator. Decree reversed and set aside at the costs of the appellee, to be paid by him out of the fund in his hands as executor of Susanna Skiles; and it is now adjudged and decreed that the net amount for distribution, viz., «12610.90, be equally divided, and one-half thereof paid to Joseph J. Lewis, administrator of Hopkins Skiles, and the other half to William J. Burnside, executor of Susanna Skiles, deceased. Mr. Justice Trunkey dissented.