Shumate v. Bailey

Barclay, J. In this proceeding for partition the trial court adjudged the respective interests of the parties upon the theory that the will of John T. Miller, deceased (a full copy of which appears in the accompanying statement), did not reach or devise his real estate, and that he died intestate as to such realty. [415] That view was indicated by the rejection of a declaration of law tendered by appellants, embodying the converse proposition, to the refusal of which they ■excepted. No instructions were given; none other, refused. •The appellants claim that the will disposed of all his property, real and personal. The decision of the issue thus raised determines the amount of interest in the subject-matter of this action properly belonging to each of the parties to the litigation. In the construction of wills, the intention of the maker, as gathered from the terms he has used to express it, enlightened by the circumstances of his situation, should have paramount force and effect. This rule is well known and conceded by all here.' Applying it, we see that, in the fourth item,' the testator undertakes to divide his “estate,” “when realized,” “in three equal parts,” and to d/spose of it to his two children and wife, etc. He uses tLe word “bequeath,” but the context enlarges the technical meaning of it to signify “give” or “devise.” Watson v. Watson (1892), decided at this term. The language of that section, as well as of other parts of the document, fairly indicates that he contemplated a sale of all his real property, except that set apart for his wife (the exact nature and extent of whose interest we need not determine, as this appeal does not ■question the circuit court’s ruling upon that point), and that the proceeds (after paying the $700 legacy) should be divided and invested according to the directions in that clause. It was remarked by Chief Justice Shaw in Godfrey v. Humphrey (1837), 18 Pick. 539, that “it has long been held that the devise of all a man’s estate, where there are not words to control or restrain its operation, shall [416] be construed, not merely to mean Ms lands, but the quantity of interest which he has in them, so as to pass ah estate of inheritance, if he has one. Carter v. Horner, 4 Mod. 89.” In Hackett v. Commonwealth (1883), 102 Pa. St. 505, Judge Sterrett, speaking for the court, held that, “the word ‘estate’ is applicable alike to real and personal property, and to restrict it to the latter there should be a clear expression of the intention to do so.” The same rule is stated in Barnes v. Patch (1803), 8 Ves. 604, and in Hunt v. Hunt (1855), 4 Gray, 193. Reading the will as a whole we consider its reasonable and natural construction to include a disposition of the testator’s entire estate, both in his real and personal property. The only controversy in the present record is upon that subject. We think the learned trial judge was mistaken in ruling that the will did not dispose of the realty. The judgment is reversed and the cause remanded with directions to proceed to ascertain the several interests of the parties in the proceeds of said land according to the principles above indicated. Chief Justice Sherwood and Black and Brace, JJ., concur.