Darling v. Edson

Opinion by Wickham, J., Eliphalet Edson, by his last will and testament, .devised and bequeathed his estate as follows: “ As to such real and personal estate as God has pleased to entrust me with I dispose of the same as follows, viz : I give and bequeath to my beloved wife, Elizabeth Edson, the full control of all real and personal estate as long as she shall remain my widow (except what is hereafter mentioned) and I also empower my said wife, on condition that she remain my widow, full power by will to divide all my real and personal estate among my children as she shall see proper, giving to each such a share as her judgment shall dictate. But should my wife see proper to get married, then my will is that she accept and receive of my property what the provisions made by the laws of Pennsylvania make for widows, and then my will is, my property, both real and personal, shall [502] be equally divided among my children.” There is a further bequest, but as it does not enter into the present controversy it is needless to quote the language of the will as to it. Elizabeth Edson did not remarry, and by her last will and testament undertook to exercise the limited power of appointment vested in her by her husband’s will. The clauses of her will necessary to be considered in deciding the present controversy, are the following: “To my two sons John H. and Elisha B. I give, bequeath and devise all my estate, real, personal and mixed, upon the following conditions, to wit: that they will as soon after my decease as they conveniently can, pay debts and expenses and place a suitable stone at my grave as above mentioned, next, that they, within one year after my decease, pay to the heirs of Matilda Snyder, deceased, $50.00, and to my son, E. Aden Edson alike sum of $50.00', next to my son Arva J. $600, and to the use of my son George K. Edson, while he lives and to his children after his death, a like sum of $600. “ These last two bequeaths to be paid in three equal payments, one third (two hundred dollars to each) in one year from the date of my decease, another third in two years, and the balance in three years after my death, with interest after the time of the first payment. “ Now should my bequest to the use of my son George K., and to his children after his decease, exceed my right or be in conflict with my late husband’s will, then and in that case I give the said sum of six hundred dollars directly to my son George K., and direct my sons John H. and Elisha B. to pay the same to him in manner as before directed.” Eliphalet Edson, at the time of his decease, was seized in fee simple of the farm, the distribution of the proceeds of the sale whereof gave rise to the present dispute. What personal property he left does not appear. The auditor finds that the widow was possessed of no personal property at the time of her death, and it seems to be conceded that she had no real estate of her own on which her will could operate. At any rate the will clearly evinces an intent on her part to execute the power vested in her, and the appellants, in their printed argument, admit that such was her purpose. We need, therefore, spend no time on this branch of the case. [503] The only question argued and requiring discussion is, whether the deviseof the farm in fee, to two of the children referred to in Eliphalet Edson’s will, and the charging of such land with pecuniary legacies, in favor of the other children and a daughter of a deceased child, is a valid execution of the power. Every will must be construed in the light afforded by its own words and the surrounding circumstances, and decisions on other wills, unless the cases are in all respects parallel, which rarely happens, may aid but not control the interpretation. In the present case, while the power conferred on the life tenant is special or limited as contradistinguished from what is known as a general power, it is nevertheless more extensive in its scope than the powers considered in a class of cases cited for the appellants, and moreover its exercise is free from the wide transgression of the limits prescribed for the donee, in another class, to which our attention has been called. The truth is there is an absence of controlling parallelism between any case cited and., the one in hand. It will be observed that Mrs. Edson was empowered to divide by will, all the real and personal estate of her husband, among his children “ as she shall see proper, giving to each such a share as her judgment shall dictate.” She was not directed to divide the realty and personalty separately. The power conferred was not to partition the land and divide the personal estate, but to divide the property as a whole. The testator viewed his estate, real and personal, as an integral thing, for the purpose of the division. Thus there was a blending of the two kinds of property, and the donee of the power might, wholly or partially, convert the realty, in order to give to each child such a share of the entire estate as she might see proper to award. We see no reason why she could not devise the land to two or more of the children, requiring them to pay to the others certain oums of money, and charging the same on the land as quasi purchase money. In an equitable sense they are considered as part of the land, as is remarked by Duncan, J., in Gause v. Wiley, 4 S. & R. 508. She might, for that matter, have directed a sale of the farm, and of the personalty, if any of the latter remained, and ordered a division of the combined proceeds. The sums directed to be paid, by the two sons, were undoubtedly charges on the farm, the realty and personalty being blended [504] by tbe will, and it being expressly stated that these sons took what was devised and bequeathed to them on the condition that they should pay the said sums of money: Cook et al. v. Petty et al., 108 Pa. 138; 2 Redfield on Wills, (2d ed.) 209. And the liens would remain, notwithstanding the existence of sufficient personal estate to pay them but which was not so applied: Cook et al. v. Petty et al., supra. They were discharged by the sheriff’s sale of the farm and are payable, before the other liens, out of the proceeds: Hellman v. Hellman et al., 4 R. 440; Strauss’ App., 49 Pa. 353; Lancaster Co. Nat. Bank’s App., 127 Pa. 214. As Mrs. Edson had no power to award to George K. Edson less than an absolute estate in what she allotted him, the learned auditor rightly gave effect to her alternative request giving the 1600 absolutely: Horwitz v. Norris, 49 Pa. 213; Wiekersham v. Savage, 58 Pa. 365; Smith’s Est., 4 W. N. C, 265; Pepper’s App., 120 Pa. 235. Regarding the legacy to the heirs of Matilda Snyder, deceased, even if it be deemed invalid, the exercise of the power is only avoided to that extent, and the legacy falls into the residuary estate. The rule is thus stated in 2 Sugden on Powers, (3d Am. ed.) 14. “ So where legacies are given by will under a limited power, to persons not objects of it, and the residue is given to proper objects, although expressly ‘ after payments of the above legacies,’ the particular legacies, by analogy to the rule as to lapsed legacies, will fall into the residue, and no part of the fund will be considered as unappointed.” We see no error in the distribution ordered by the court below. The decree is affirmed, the costs of the appeal to be paid by the appellants.