Jones v. Strong

Opinion, Mr. Justice Williams : The will of R. J. Wisner was executed in 1877. His death did not occur until 1884. When he made his will, the larger part of his estate appears to have consisted of unproductive coal lands, and he gave his executors f ull power to sell or lease them, as they might think best. Having thus provided for converting his estate into money, he disposes of the fund as fol [501] lows : By the second paragraph, he gave ten thousand dollars to his wife in lieu of dower. By the third, he directed that the residue, after the payment to his wife, should be divided into two equal parts. One of these he gave to his daughter, the appellant, “ to do with as she may think best; ” the other he gave to his executors, in trust to re-invest the same for the use of his daughter while she lived, and for distribution at her death among her children if she should leave any, and among certain collaterals named if his daughter should leave no child surviving her. The fourth paragraph described the collaterals, and the manner in which they should take, if the one half in the hands of trustees should reach them. The fifth is partly advisory and partly directory. The will provided for a division upon the idea that the executors might decide to sell his coal lands, and so have their proceeds in hand for use in accordance with his directions; but in this paragraph the testator expressed his preference for a sale upon royalty, called a lease, and his wish that his executors should, if it seemed best to them, treat his coal lands in this way, so as to secure what he styles “ a permanent revenue ” from them, rather than from a re-investment of the proceeds of a sale of them. But this seems to have suggested to him that the directions he had given about division and re-investment would be inapplicable in case of a sale upon a royalty, and that division would in that case be necessarily made of the income or annual payment of royalties as they were received. He proceeds, therefore, to say “ the income thereof (the royalties reserved in the lease) to go to my daughter in lieu of converting the same (the land out of which the royalties are reserved) into cash and re-investing for her benefit.” The question in this case is over the effect of the words just quoted from tbe fifth paragraph. It is contended by the appellant that they operate as a revocation of so much of the third paragraph as provides for a trust as to one half of the estate for the benefit of her children, and, in case she shall leave none, for the collaterals named in the fourth paragraph, and gives to her the entire proceeds of the royalties. To determine whether this is so or not we must look at the will as a whole. The general intent or scheme of the will is plain. It is to [502] provide first for his wife, next for his daughter, then for her issue, if any, but if none, then for certain persons named. The wife takes her share absolutely as the first step in the division. The balance is divided into equal parts, and the daughter takes one of these absolutely. The other goes to trustees for the benefit of alternative classes of beneficiaries after the daughter’s death. In case a sale had taken place by which the coal land had been converted into money, no question could have arisen over the relative interests of the daughter and the trustees. But the paragraph under consideration suggests another mode of raising an income from the coal lands, and expresses the testator’s preference for it, if, when the time comes for settling the question, his executors should think it advisable. It does not indicate any purpose to change the general plan for disposing of his estate, or to strike down the trust; and if this paragraph is capable of a construction that will not interfere with either, it is clearly our duty to adopt it: Ferry’s App., 102 Pa. 207; Sheetz’s App., 82 Pa. 213. The inconsistency to justify a disregard of the former of two provisions relating to the same subject must be clear and irreconcilable : Sheetz’s App., supra. Looking' at these provisions in their relation to each other and to the scheme of the will, we are of opinion that the court below correctly held them to be consistent with each other. The testator provided for the division and distribution of his estate in the third paragraph of his will, on the idea that it would be converted into money by his executors, and the shares of the widow, the daughter, and the trustees be taken by each in bulk. But, desiring, and anticipating as possible, a sale of the coal at a royalty, so that, after the payment of his bequest to his wife, his executors would have under their control the periodical royalties from the coal, instead of the price of the coal land as a whole, he intended to put the royalties in place of the gross price of the land, so that his estate would in either event follow the plan of division he had provided. This portion of the fifth paragraph may therefore be read as follows: In case of a'sale of the coal upon a royalty I wish “ the income thereof (the royalties) to go to my daughter (to the extent to which she is entitled to take) in lieu of converting the same (the land) into cash and reinvesting for her benefit,” (as here [503] inbefore provided in case of a sale of the land.) This construction preserves the scheme of the will, and makes it applicable to either of the modes of dealing with his coal lands which were before the mind of the testator. That contended for by the appellant sacrifices the general intent, the trust, and the remainder-men; and this result is reached, not because the testator has declared his purpose to revoke the trust, but because the executors have royalties to distribute from time to time, instead of a gross sum to divide at once. There is no reason to suppose that the testator intended to change his plan of distribution, unless it can be gathered from the words in the fifth paragraph which we are considering, and these do not refer to the trust at all. They direct, as we think, that the price of the coal shall be divided in the same manner, and that his daughter shall stand in the same position towards it, whether that price shall come to the hands of his executors in a gross sum, or in a series of instalments as royalties. The decree of the court below is affirmed, at the cost of the appellant.