Haworth's Appeal

Mr. Justice Paxson delivered the opinion of the Court, March 17, 1884. The principal question presented by this record is, whether the provision for the support of Lydia Dover contained in the will of David Ditlow, is a charge upon the land devised to Marion Dover. The language of the will is as follows : “It is my will and I do hereby order, give and bequeath unto my grand-daughter Marion Dover, a child of my daughter Lydia, all the remainder of my real estate that may be left unsold, or remains by my wife Mary, after her decease, to her forever.....and said Marion shall support and maintain her said mother during her natural life if she should come into circumstances that she cannot support or provide for herself; and further, in case the said Marion shall die without lawful heirs, then the above said mentioned real estate shall go to her lawful brothers and sisters, and he or they shall his or their mother on the above said support or maintenance provided for her.” The law is thus clearly stated by the late Chief Justice Sharswood in Cable’s Appeal, 10 Norris at page 329: “It is well settled that a mere direction by a testator that a devisee shall pay a legacy does not thereby create a charge on land. There must be something more, — express words or necessary implication from the whole will that such was the intention.” There are no words in this will which amount to an express charge upon the land. There is a devise to Marion Dover and a direction that she shall provide a support for her mother if she shall need it. This is no stronger than the words of the will in Hamilton v. Porter, 13 P. F. S., 332: “I will that S. H. H. is to take the land and pay $700 to each óf my within named heirs,” or in Buchanan’s Appeal, 22 P. F. S., 448, where the devise was to W., “he paying the legacies,” in both of which cases this court held that there was no charge upon the land, in Cable’s Appeal, supra, the testator devised his farm to his two sons, John and Edward, but they “are to pay ” added the* testator, certain specified legacies to his four daughters, and they “are to find a house for my wife Sarah and daughter Harriet and keep and clothe them, also, to provide for them everything that is necessary for their comfort as long as they shall live or remain unmarried.” It was held by this court that this did not amount to a charge upon the land, but was a [365] mere personal charge upon the sons in case they accepted the devise. So far the case is free from difficulty. It was urged how-' ever that the last portion of the above recited paragraph of the will shows an intention on the part of the testator to create a charge running with the land. It is true the will provides that in case the said Marion shall die without lawful heirs, the real estate in question shall go to her lawful brothers and sisters “ and he or they shall his or their mother on the above said support or maintenance provided for her.” The® language quoted is obscure, and its meaning can only be arrived at by supplying words not contained in the will.. But conceding the construction claimed for it by the appellees, does it amount to a charge upon the land? Does it impose any burden upon the land in the hands of the brothers and sisters in case of Marion's death without lawful heirs, that was not imposed upon it during Marion’s lifetime ? It is clear from all the authorities that as to Marion it was a mere personal charge in case she accepted the devise. We regard it as equally clear that the testator intended by the devise to her brothers and sisters that the latter should take the land precisely as Marion held it, viz., subject to a personal charge for their mother’s support. They would have been personally liable for such support had they taken the land under the devise. It was easy for the testatpr to have expressly charged this land for Lydia Dover’s support if he had intended it. He did not do so, and we are of opinion that no such charge results by necessary implication from his will. To create a charge upon land, we must have something better than a guess or mere possibilities. Marion Dover having died leaving a husband and children surviving her, the brothers and sisters never took under the will. The charge being personal as to Marion, ceased at her death, and cannot be enforced against the land in the hands of her heirs. This renders a discussion of the remaining questions unnecessary. The decree is reversed and the petition dismissed at the costs of the appellees.