Appeal of Keiper

Opinion, Me. Chief Justice Paxson : This record involves the single question of the ademption of a legacy. John Keiper, deceased, by his will, made the following bequest: “ I give and bequeath to James Miller, Esq., of Elizabethville, Dauphin county, Pennsylvania, the sum of one thousand dollars in trust, safely to invest the same- at interest; this amount, and what interest may accrue thereon, to be used only toward the erection of a Reformed Church in the United States at Elizabethville, Dauphin county, Pennsylvania, and shall not be paid by the said James Miller, Esq., until he is perfectly satisfied, that no debts of any kind whatever rest on said church property, or until said amount, with accrued interest, would place the church entirely out of debt.” Parol evidence was given of the facts which are relied upon to show an ademption of this legacy. They are, briefly stated, as follows: At the time of the execution of the will the erection of a Reformed Church was in contemplation, but it was [199] not erected until the year 1884, at which time it was finished; that the testator paid during his lifetime $723 towards its erection, and that at the time of its dedication in 1884, the trustees thereof certified to the dedicating minister that it was fully paid for before he would, under the customs of that society, dedicate the same; but the evidence showed that debts aggregating $119 had been assumed by some persons interested in the church, and that the total debt at dedication in' 1884 was not more than $144. There was also some evidence to show that the moneys contributed by the testator in his lifetime were intended to he additional to the legacy. The auditing judge awarded the whole legacy to James Miller, trustee for the church, which award, upon exceptions filed, was affirmed by the Orphans’ Court. We are asked to reverse this ruling upon the ground (a) that the contributions made by the testator during his lifetime were intended to be in lieu of the legacy, and (li) that inasmuch as the sole object for which the legacy was given was the erection of the church, it could not be applied to any other purpose, and as that object had been fully accomplished, there was an ademption of the legacy. We do not regard either position as well taken. The testator had not contributed tbe full amount of the legacy. It lacked the sum of $277. We might still regard the legacy adeemed pro tanto, provided it appears by the will that the only object to which it could he applied, and for which it was intended, was the erection of the church building. We do not understand this to be the proper construction of the will. Such view is inconsistent with the provision that the legacy “shall not be paid by the said James Miller, until he is perfectly satisfied that no debts of any kind whatever rest on said church property, or, until said amount, with accrued interest, would place the church entirely out of debt.” We think it plain from this, that the testator contemplated and desired that the church building should be erected and free from debt when this legacy should be paid, hut in view of the possibility of the church not being able to accomplish this without his bounty, lie authorized his trustee to apply it to the payment of the church debt caused by the building, provided, and only on the condition, that it would extinguish the whole of it. [200] This view renders it unnecessary to consider and discuss the authorities cited upon the argument. They are inapplicable to the facts of this case. The decree is affirmed, and the appeal dismissed at the costs of the appellant.