Commonwealth v. Hackett

Mr. Justice Sterrett delivered the opinion of the court, October 1st 1883. The question submitted to the court below, in the case stated, is whether, upon the facts therein recited, the trust estate of George H. Barnet, or any part thereof, is subject to the payment of collateral inheritance tax. The net valuation of the estate is $28,559.81, including a house and lot valued at $18,741,85. It was claimed, on behalf of the Commonwealth, that, by virtue of the deed executed by George H. Barnet, the property, which was the subject of the trust thereby created, passed directly upon his decease to his sister, the defendant below. On the other hand, she contended that, under the trust deed, their mother, Mrs. Barnet, acquired a vested interest, in remainder, in the trust property, and that [513] the same passed to her under their mother’s will, one half thereof as an absolute bequest directly to her, and the other half as a bequest contingent upon the decease of her brother George without lawful issue and therefore no part of the property is subject to the tax. The court sustained the contention of the defendant, except as to the real estate, and held that while the will of Mrs. Barnet was sufficient to pass her interest in the personalty, it was inoperative as to after-acquired real es-taste. Hence it followed that she died intestate as to her vested interest in the house and lot, and, under'the intestate law, one moiety thereof passed directly to her daughter, Mrs. Hackett, and the other to her son George, upon whose decease unmarried and without issue the same also descended, through him, to her, and thus became liable to payment of the tax. Judgment was accordingly entered in favor of the Commonwealth, for the tax on half the valuation of the house and lot. To that judgment each of the parties took a writ of error in which substantially the same questions are raised. For reasons given by the learned president of the common pleas, he was clearly right in holding that, under the deed of trust, executed by George H. Barnet in 1878, his mother acquired a vested estate in the house and lot, and a like interest in the personal property, covered by the trust, which she had power to dispose of by will or otherwise, subject only to the power of sale, given to the trustee, and the life interest of her son George. The precedent estate is so limited by the deed of trust that it would necessarily terminate by the death of George, an event which was certain to occur sooner or later, and the remainder is given to his mother and her heirs. According to the recognized authorities, this gave her an interest in remainder which vested immediately on the execution and delivery of the deed. This feature of the deed distinguishes it from a testamentary paper, and none of the subsequent expressions contained therein changes its character in that respeet. The specification of error relied on by the Commonwealth is not sustained. The substantial proposition embodied in the second ease No. 219, January. Term 1883, is that the court below erred in holding that Mrs. Barnet died intestate as to her interest in the house and lot, because she acquired the same after making her will. ¥e have already seen that immediately upon the execution of the deed Mrs. Barnet took a vested interest in the trust fund and property, the enjoyment of which, in possession, only, was postponed until the death of her son George, and that the interest thus acquired might be disposed of by will or otherwise during his life-time as well as afterwards. That being the settled construction of the deed, it cannot be doubted that her [514] after-acquired interest in the personal property of the trust was disposed of by her will, notwithstanding the same was made two years before the deed was executed. The will took effect upon the death of the testatrix, and speaks as of that date. The only question is whether the after-acquired interest in the house and lot also passed by the will. After specifically disposing of a portion of her estate the testatrix orders and directs that “ ail the rest residue and remainder of my estate shall be equally divided into two shares,” one of which she gives to her daughter Mrs. Hackett, and the other in trust for her son George, etc. and in the event of his dying without lawful issue, then to Mrs. Hackett- absolutely. The language of the residuary clause is very comprehensive, and if the testatrix had been possessed of real estate when her will was made, it undoubtedly would have passed, as part of her residuary estate, according to the direction contained in that clause. No particular words or form of expression is necessary to constitute a devise of real estate. The Act of April 8th 1833, declares that “ the real estate acquired by a testator after making his will shall pass by a general devise, unless a contrary intention be manifest on the face of the will:” Purd. 1476, pi. 11. The effect of the Act is to destroy the distinction between real estate owned at the time of making a will and that acquired afterwards, “ unless a contrary intention be manifest on the face of the will.” It postpones the operation of the will as to real estate until the death of the testator, and gives to it the same effect as if it had been reduced to writing and signed at the time of his decease : Roney v. Stiltz, 5 Whart. 381. There is nothing in the will to indicate that the testatrix intended to die intestate as to any part of her estate. Qn the contrary, she disposes, in express terms, of all the rest, residue and remainder of her estate. The word estate in applicable alike to real and personal property, and to restrict it to the latter, there should be a clear expression of intention to do so. The residuary clause is quite sufficient to pass real as well as personal estate, and in the absence of a contrary intention, manifest on the face of the will, it must be presumed the testatrix intended to dispose of both. Judgment reversed, and judgment on the case stated is now entered in favor of the defendants below.