Woodside's Estate

Opinion by Mr. Justice Fell, The only question raised by this appeal is whether the testator died intestate as to certain cattle which at his death were in his barns on the west side of French creek. This creek divided [50] his lands into two nearly equal parts, and he made it a division line in disposing of his estate. His purpose to devote his property which was on the east side of the creek to the payment of debts and pecuniary legacies, and to give that on the west side to his adopted daughter and sister-in-law clear of all claims, he made very plain. After making a number of pecuniary legacies he directed that they should be paid from the proceeds of the sale of his real and personal property situate on the east side of the creek, and he provided that in the event of a deficiency of assets after the payment of debts the legacies should abate proportionately,. and that if there should be a surplus it should be divided equally among his nephews and nieces. He then came to the second branch of his will. Having exempted his property on the west side of the creek from the payment of debts and legacies he disposed of it, first by giving a farm to his adopted daughter, and then by giving all other lands and the personal property thereon to his sister-in-law. The last clause of the will is in effect a residuary clause. He had before disposed of all his property real and personal on the east side of French creek, and of one farm on the west side, and had provided plans for distribution in case there should be either a deficiency or a surplus. He commenced the clause with the words, “ I now give and bequeath,” which in their connection indicate an intention to make a final disposition of the remainder of his property, and he proceeded to dispose of all other lands which he owned and all personal property thereon. His enumeration of the kinds of personal property, “such as cows, horses, hogs, household furniture, all farm tools, wagons, etc., that may be on the farm,” raises the only doubt as to his intention. If this had been omitted his mean-' ing would have been very clear. But this enumeration, following general words which include everything, and in a clause which is in its character residuary, does not, we think, exclude the cattle in question. These cattle had been pastured on the testator’s farms on both sides of the creek, and four months before his death they had been taken to his barns on the west side to be fattened for market. This had been done in the regular course of his business. For several years he had bought cattle which he pastured, on all of his farms during the summer and fattened in his barns on the west side during the winter. [51] He was engaged in this business when the will was written, and continued in it without interruption until his death. The cattle in question constituted a large part of his personal estate, and it cannot be supposed that he either overlooked them in making his will or that he intentionally omitted them from the disposition he made. He was an uneducated man, entirely unskilled in the use of language, and his intention can be better reached by considering the general plan and purpose of his will, which he succeeded in making clear, than by a critical examination of the words and phrases which he used. A partial intestacy is not to be presumed if the words used will carry the whole estate, and a construction is to be given a will which will avoid a partial intestacy unless the contrary is unavoidable: Reimer’s Estate, 159 Pa. 212, and cases there cited. There is nothing in the will to indicate an intention that it was not to speak and take effect as if executed immediately before the death of the testator, but its general scheme and expression are in harmony with the construction provided for by the Act of June 4, 1879, P. L. 88. The decree of the orphans’ court is reversed and set aside, and the report of the auditor is confirmed.