Hammer's Estate

Opinion by Mr. Justice Dean, Solomon N. Hammer, the testator, died February 13, 1890, leaving six children, four sons, Joseph S., John C., David M. and Ross F., and two daughters, Mary Cauffield and Charlotte Livingston. In his lifetime, he had conveyed to his two sons, John C. and David M., farms at a valuation, and had credited to each three thousand dollars on the purchase money as an advancement. At his death, he still owned the “ Gindlesperger farm,” for which he had paid, some thirty years before, twenty-five hundred dollars. This he had improved by building upon it a very substantial farm house, so that it is not improbable the testator fixed the value of this property by what it had cost him, instead of by what it would fetch, and thus overestimated the amount of money which would come into the hands of his executors from a sale of it. This farm, then, being the only real estate which the testator owned at his death, he makes this disposition of it in paragraph 7 of his will : “ As to my real estate, my will is that the same shall be by my executors hereinafter named, exposed to sale as soon after my decease, and on the best terms as shall by them be found convenient, and, out of the proceeds of such sale, shall pay to my son, R. F. Hammer, three thousand dollars to equalize him with my other sons, John C. Hammer and David M. Hammer, who were advanced three thousand dollars each in the purchase of real estate ; and I further give and bequeath to my son R. F. Hammer two thousand dollars as a special Request.” [637] It is conceded that the special bequest of $2,000 to R. F. Hammer was intended for Joseph, and has nearly all been paid over by his brother. It further appeared from the evidence, that testator, in his lifetime, had advanced to Joseph six hundred dollars, and by item 6 of his will had bequeathed to Cordia Augusta Thomas, Joseph’s daughter, four hundred dollars, thus making the sum of the whole, directly and indirectly given to Joseph, three thousand dollars. The two daughters, by advaneements and bequests, each received one thousand dollars. The farm, after being properly advertised and fairly offered at public sale, was sold for only $1,835. The purchaser was R. F. Hammer, son and legatee named in the seventh paragraph of the will, and who now makes claim as a legatee to the whole $3,000, out of the general fund. The other brothers resist this claim, alleging that the legacy under the will is specific, to be paid only out of the particular fund realized from the sale of the farm ; it is argued that, as the farm sold for only $1,835, so much of the three thousand dollars as is not reached by that fund must be held to be adeemed. The court below decided in favor of the claim of R. F. Hammer, and from that decree comes this appeal. The question turns on the intent of the testator. Did he intend to relieve his personal estate from the payment of any part of this legacy? If so, it is specific, and no part of it can be paid out of other than money realized from the real estate; otherwise,,it is demonstrative and payable out of the general fund. Courts uniformly in such cases-lean to a construction which shall declare the legacy demonstrative rather than specific : Balliet’s Appeal, 14 Pa. 461; Walls v. Stewart, 16 Pa. 275; Smith’s Appeal, 103 Pa. 561. The whole subject of specific and demonstrative legacies is so elaborately treated in Walls v. Stewart, supra, that repetition is useless. If there could be deduced from this will a clear intention to charge the land alone with the payment and to discharge the personalty, the appeal should be sustained, otherwise, not. From all the cases, that is the rule to be followed. The testator, in the second item of his will, directs that all his personalty, which, as the event proved, amounted to about $7,500, should be distributed as he in his will thereinafter directed. He doubtless knew approximately the value of this [638] personalty. Then, in the subsequent dispositions, the intention is manifest to give each of the daughters $1,000, and each of the sons $3,000 ; he expressly says in the seventh clause that the intention is to equalize Ross F. with his brothers John and David, to each of whom he has advanced $3,000; Joseph, as we have already noticed, also having by the testator’s method of distribution got $3,000. The primary, paramount intent here is to equalize his gifts to his sons at $3,000 each; evidently, to give Ross, who as yet has received nothing by advancement, $3,000 ; then is expressed the secondary or subordinate intent, the direction to the executors to pay the amount out of the money realized from the farm. There is nothing which clearly shows the testator meant to charge the farm alone with the legacy, and discharge the personalty; and, unless this so appears, the legacy is demonstrative. Doubtless, it did not occur to the testator that the farm might not sell for $3,000 ; he probably thought it worth much more; therefore the contingency that it might sell for less was not expressly provided for, simply because, to his mind, no such contingency existed; but it did occur to him that, as two of the sons had already received by advancements each $3,000, and the third would by advancement and legacyr receive $3,000, the fourth, Ross, would not receive a like amount unless he positively and expressly said so; hence the unqualified direction to the executors to pay Ross $3,000 to equalize him with his brothers. True, he points out the source of this payment, which", as it now#turns out, failed to come up to his expectations, but this cannot negative the absolute unqualified intention to equalize the sons at $3,000. In ascertaining the intent from what the testator has said, in cases of this character, we seldom get much aid from authorities, for the reason that the words from which we must gather the intent are seldom the same. In the authorities cited and relied on by the learned counsel for appellant, Cryder’s Appeal, 11 Pa. 72, and others, the wills interpreted contain no peremptory directions to equalize the legatees at a fixed sum, as in the will before us ; if these words were absent from this will, the authorities cited would perhaps sustain the contention of appellant that this is a specific legacy ; but with them present, no authority can overthrow the manifest intention of the testator, that the legatee shall have out of his estate the same amount of [639] money as bis brothers. Such being the case, the learned auditor and court below were right in holding this a demonstrative legacy. The decree is affirmed, and appeal dismissed at costs of appellant.