Summary
Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1883, Nos. 149, 142, and 150.
These were three separate appeals from a decree of the Orphans’ Court of Philadelphia county, in the matter of the adjudication of the account of Elliston P. Morris, surviving executor of the will of Perot Lardner, deceased, and the distribution of the balance in the hands of the accountant.
Upon the audit, before Penrose, J., the following facts appeared :—
Perot Lardner died April 29th 1881, leaving a will and codicil thereto, both dated May 17th 1879, possessed of a large personal estate, and seised of certain real estate which- he derived by descent from his father, and of other real estate which he derived by descent- from his mother. He survived his wife (who died after the date of his will) and died without issue.
Under a testamentary power (hereinafter recited) his executors sold certain parcels of testator’s real estate derived by him ex parte paterna, and other parcels derived ex parte materna. As an incident of the power to sell, they also collected rents from both classes of real estate.*
The fund for distribution consisted, besides personalty, of said rents and proceeds of 'realty, the derivation of which whether from real estate derived ex parte paterna or ex parte materna was particularly specified in the account.
There was no contest as to the distribution of the personalty and of the rents and proceeds of sale of real estate derived ex parte paterna ; the question being as to who were the parties, entitled to the rents and proceeds of real estate derived ex parte materna.
Of this last mentioned real estate, the testator’s mother, Mary P. Lardner, acquired title to certain portions or undivided interests by purchase; and she acquired title to certain other portions or undivided interests by ■inheritance (a) from Charles Perot, (first purchaser) (b) from John and Elliston Perot (first purchasers).
The testator’s will and codicil were as follows :—
In the name of God Amen. I Perot Lardner of the city of Philadelphia, being of sound and disposing mind, memory and understanding, do make publicly and declare this my last will and testament, revoking and testaments heretofore made by me. testament, revoking and making void all other wills
1. I direct that all my just debts be fully paid and sátisfied.
2. I give and bequeath to my uncle, Richard Penn Lardner, the sum of ten thousand dollars.
3. I give and bequeath to my uncle, James Laurence Lardner, the sum of ten thousand dollars.
4. I give and bequeath to Esther Lardner, widow of my late uncle Alexander Lardner, the sum of ten thousand dollars.
5. 1 give and bequeath to my friend Elliston Perot Morris, the sum of one hundred thousand dollars.
6. I give and bequeath to my friend, Lewis Wain Smith, the sum of ten thousand dollars.
7 1 give and bequeath to my friend,'Hannah M. Lindley, the sum of ten thousand dollars.
8. I give and bequeath to my friend, Elizabeth Lindley, the sum of ten thousand dollars.
9. I give and bequeath to the following named Institutions the following respective sums; unto The Orphan Society of Philadelphia the sum of two thousand-dollars; unto the contributors to the Pennsylvania Hospital the sum of five thousand dollars; untó the Atheneum of Philadelphia the sum of two thousand dollars; unto the Lincoln Institution the sum of two thousand dollars; unto the Protestant Episcopal Church at Oxford, commonly called The Oxford Church, the sum of two thousand dollars.
10. I give and bequeath to the commissioners of Fairmount Park the sum of one thousand dollars to be expended by them in buying and planting English Oaks in the said park.
11. I give and bequeath to the hospital of the Protestant Episcopal Church in Philadelphia, situated on Lehigh Avenue, the sum of five thousand dollars.
12. I give and bequeath to my wife, Ellen M. Lardner, the sum of two hundred thousand dollars absolutely.
13. It is my will that all the legacies hereby left by me shall be paid in full clear of the collateral inheritance tax which I direct shall be paid by my executors out of my residuary estate.
14. All the rest residue and remainder of my estate real and personal of whatsoever kind and wheresoever situated of which I may die seized I give, bequeath and devise unto my executors hereinafter named or the survivor of them, the heirs, executors, administrators and assigns of said survivor, in. trust nevertheless to invest the same and keep the samé invested in any such securities as they may deem most prudent, taking care to select such as commend themselves rather for security than for a high rate of interest and at their or his pleasure to change said investments and to collect the income, issues and profits thereof, and after paying taxes, expenses', repairs and all charges, to pay over the net income, issues and profits'quarterly, should I die without a child or children, to my wife Ellen M. Lardner, for and during her natural life the said payments to be made to her personally upon her own receipts and not to be subject to any control in any way of any husband that she may have, nor to any anticipation, sale or alienation or disposal by her own act or by any acts of law whether for or without consideration, nor to any debts, contracts or engagements contracted or hereafter to be contracted by her, nor to any attachment or execution of any kind whatsoever, and upon her death, to divide the principal of my said residuary estate among such persons and in such proportions as is provided for by the intestate laws of Pennsylvania, it being my will that in the event of my dying without issue that after tiie death of my wife Ellen, the whole of my estate shall vest in and be divided among my next of kin or heirs at law the same as .though I had died intestate and unmarried.
The foregoing provision as to both the income and principal of the said trust estate to be of effect solely and only in case I should die without leaving a child or children or- the descendants of a child or children living at the time of my death. In the event of my dying leaving my wife surviving me, and also a child or children or the descendants of a child or children, then I direct my said executors to pay over to my wife, Ellen, one-third of the net income of the said trust estate during her natural life upon the same restrictions as above set forth, and the remaining two-thirds of the said income they shall reinvest from time to time after making such allowance for the maintenance and education of the said child or children as they may deem proper, and continue to hold the same in' trust until my youngest child shall reach the age of twenty-one years. On the happening of that event, I direct my executors to set aside one-third of the principal of my estate, and to continue to hold the same in trust, the income thereof being payable to my wife, Ellen, as above set forth, and at her death the principal to be conveyed by them to my child or children or the descendants of such child or children should the child be dead free from any trust whatsoever.
The remaining two-thirds of the principal of my residuary-estate, together with all accumulated income, I direct my executors to divide according to their best discretion into as many equal parts as I may have children, and to convey one of sucii parts to each of my children or to the descendants of any child-who may be dead, such descendants taking their parents’ portion, free clear and discharged of any trust whatsoever. I further direct that on any of my sons reaching the age of eighteen years my executors shall pay to him the sum of twenty-five thousand dollars out of either the income or principal of the said trust estate, so that he may dispose of the same as he may see fit. I further authorize and empower my said executors to make sale-in their discretion of any real estate for the purposes of this trust, and to make deeds to the purchaser or > purchasers thereof without any liability on the part of the pur- ■ chasers to see to the application of the purchase-money.
15. The above and foregoing provisions I have made for my wife Ellen are to be received by her in full lien and discharge of dower.
16. I nominate, constitute and appoint my friends, Elliston P. Morris and Lewis Wain Smith, executors of this my last will, hereby authorizing them, as executors, to make sale of any of my real estate, and to execute and deliver deeds therefor without any liability on the part of the purchaser to see to the application of the purchase-money.
In witness whereof I have hereto set my hand and seal this seventeenth day of May a. d. 1879. •
Perot Lardner. [seal]
(Signed, sealed, &c., &c., in presence of two subscribing witnesses.)
CODICIL.
I, Perot Lardner, do hereby make and publish this codicil to my foregoing will and testament. Considering the uncertainty of life, I desire that after the full administration of my estate by my executors, who are named in the said foregoing will, that die number of trustees under the 14 paragraph of the said will should be increased from two to three. I therefore direct my said executors, Elliston P. Morris and Lewis Wain Smith, after the final settlement of their accounts as executors to pay over the balance in their hands, and to convey all real estate which may not have been sold by them to Elliston P. Morris, Lewis Wain Smith and William E. Littleton as trustees, or to the survivors or survivor of them, they to hold the same in trust, and dispose thereof in accordance with the powers and directions heretofore given to my executors in the 14 paragraph of the said will. I further direct that in case of the death resignation or inability to act on the part of any one or two of the three trustees herein named, the remaining two or the survivor, if two should die or resign, shall immediately nominate and appoint a suitable person or persons to fill such vacancy or vacancies, and said appointment shall be evidenced by a duly signed acknowledged and recorded declaration by the said survivor or survivors that he or they have exercised this power of appointment, whereupon the* party or parties so nominated and appointed shall succeed to all the powers of said trust hereinbefore conferred upon my executors, it being my express will that there shall always be three active trustees under the said trust. I hereby republish all the other provisions of said will. In witness whereof, I have hereto set my hand and seal this seventeenth day of May a. d.- 1879.
Perot Lardner (seal).
(Signed, sealed, &c., &c., in presence of the same two sub-' scribing witnesses.)
Duly proved by the two subscribing witnesses, May 4th 1881, and letters testamentary granted to Elliston P. Morris and Lewis Wain Smith. The latter died June 17th 1881.
At the audit, the said funds in dispute were claimed—
I. By Richard Penn Lardner, a paternal uncle of testator and by the several children of four deceased paternal uncles of testator.
II. By the several appellants as heirs of the testator tracing their relationship ex parte materna.
The former class based their claim upon a construction of testator’s will, that equitable conversion had been effected of all the testator’s real estate, including that derived ex parte materna, by virtue whereof the proceeds thereof, being personalty, were distributable to them as testator’s next of kin, without distinction of blood.
The latter class denied that equitable conversion had been effected, and insisted that under the clause in testator’s will wherein he directed, that, ‘‘ in the event of my dying without issue, after the death of my wife, Ellen, the whole of my estate shall vest in and be divided among my next of kin or heirs at law, the same as though I had died intestate and unmarried,” the testator (so far as devolution of title was concerned) died intestate as to the real estate in question, which descended, according to the canon, to this class of claimants, as his heirs at law, being of the respective blood of the said first purchasers.
This latter class of claimants (expa?'te materna) was subdivided into three classes, viz.:
(1.) T. Downing Bindley, Hannah M. Bindley, and Elizabeth D. Bindley, nearest relatives of the testator of the blood of his mother. (They were first cousins of testator’s mother on the side of her father John J. Downing, being children of Sarah A. Bindley, a deceased sister of said John J. Downing.)
(2.) William S. Perot and Francis Perot, nearest relatives of the testator of the blood of said Charles Perot and of the said John and Elliston Perot. (They were children of said Elliston, nephews of said John and first cousins of said Charles Perot.)
(3.) Joseph S. Perot, Elliston L. Perot, Effingham Perot, Hannah P. Morris, Samuel Morris, and Beulah M. Rhoads, who were also relatives of the testator of the blood of said Charles Perot arid of the said John and Elliston Perot, but a generation more remote than were said William S. and Francis Perot. (They were children of a deceased brother and of a deceased sister of said William S. and Francis Perot.)
The following table shows the several relationships above set forth.
The auditing judge (Penrose, J.), decided—
1. That the will of .Perot Lardner, deceased, did not work a conversion of his leal estate into personalty.
2. That the real estate of said Perot Lardner, deceased, which he inherited from his mother, descended to his next of kin ex parte materna, in the following manner, viz :
(«) As to so much of said real estate as the testator’s mother acquired by purchase, the same descended to said T. Dowling Lindley, Hannah M. Lindley and Elizabeth ,D. Lindley, nearest relatives of the testator of the blood of his mother.
(b) As to so much of said real estate as the testator’s mother acquired by inheritance from Charles Perot, the sáme descended to said William S. Perot and Francis Perot, nearest relatives of the testator of the blood of said Charles Perot.
(c) As to so much of said real estate as the testator’s mother acquired by inheritance from John Perot and Elliston Perot, the same descended to said William S. Perot and Francis Perot, nearest relatives of the testator of the blood of said John- and Elliston Perot.
id) That said Joseph S. Perot, Elliston L. Perot, Effingham Perot, Hannah P. Morris and Beulah M. Rhoads, although related to testator, and of the blood of said Charles Perot and of said John and Elliston Perot, yet being a generation more remote than said William S. and Francis Perot, were not within any Act of Assembly extending representation among collaterals so as to include them, and they were, therefore, not entitled to any of said real estate, or to participate in the distribution of the results and proceeds thereof.
3. The rents and proceeds of the real estate so as aforesaid acquired by testator ex parte materna, collected and received by his executors under power in the will, were distributed to the several parties above mentioned in the manner and proportions in which they would have been entitled to the said respective classes of real estate, had the same remained unsold by the executors.
To this adjudication and decree, exceptions were filed by said Richard Penn Lardner and others, relatives of the testator ex parte paterna, viz :
The learned judge erred in deciding that the will of Perot Lardner, deceased, did not work a conversion of his real estate ; and in not awarding to the exceptants as next of kin of said Perot Lardner (without distinction of blood) all the rents and proceeds of real estate comprised in the executor’s account.
The following exceptions to the adjudication and decree were also filed by Joseph S. Perot et al.
1. Because the learned judge erred in awarding the rents collected by the accountant from the several premises and ground-rents mentioned in the account filed and in the adjudication, to William S. Perot and Francis Perot.
2. Because the learned judge ei’red in not awarding their due proportion of the said rents to the exceptants.
3. Because the learned judge erred in deciding that there is no Act of Assembly extending representation among collaterals, so as to include the exceptants.
4. Because the learned judge erred in deciding that the ex-ceptants are not entitled to participate in the distribution of the said rents, or any part thereof.
The court, after argument, sustained the said exceptions filed by Richard Penn Lardner et al., Ashman, J., delivering the following opinion : — “ With Dundas’s Appeal, 14 P. F. Smith 325, before us, emphasized by the later case of Page’s Estate, 25 P. F. Smith 87, and Roland v. Miller, 39 Leg. Intel. 356, in which the principles of that decision were accepted as operative, we are forced to the conclusion that the will of the testator worked a conversion of his real estate. Among the reasons which give the earliest of these cases a. controlling application to the present, are the gift of the residuary estate, real and personal, to the executors, in trust, to invest the same in such securities as they should select, coupled with a power of sale and a direction, after a final settlement of their accounts, to pay over the balance in their hands, and to convey such real estate as may remain unsold, to the trustees, who were to “ succeed to all the powers of the said trust.” The gift to the life tenant' may also be specified, which carefully enumerates the income, issues and profits, but omits mention of rents ; and the gift of $25,000 to each son, as he should attain eighteen years of age, which was to be paid out of either the principal or income. In these provisions of the will an intent to create from the blended realty and personalty, a fund in money for the purposes of distribution, is at least as diseernable as in Dundas’s Appeal and Roland *. Miller, and this circumstance, in all of the cases cited, was recognized as equivalent to an express direction to sell. Excluding the trust for the children, which failed because the testator died childless, we find, immediately following, the special power of sale for the purposes of that trust, a general and unlimited power to sell, which was designed to meet the event which has actually happened. No analogy is presented between this and the last reported case in which the question was fully argued (Peterson’s Appeal, 7 Nor. 397), because in that case the children were expressly privileged to take the land itself at a valuation, a provision which effectually negatived the theory of a conversion by the testator. The intent is the solo test of conversion, and a devise, as here, to the executors for the purpose of sale, manifests an intent to convert; Chew v. Nicklin, 9 Wr. 84. The objection that the distribution was ordered among heirs as well as next of kin, and that the executors were to pay the taxes and repairs, does not, we think, conflict with our view of the testator’s intention. His use of the phrase “ next of kin or heirs at law,” shows that he regarded those expressions as convertible terms, and we cannot, in^the face of his intention elsewhere to the contrary, substitute “and ” for the disjunctive which he has employed. So the executors might properly be enjoined in the will to provide for the taxes and repairs of the real estate, when the direction to convey to the trustees what remained unsold, indicated the testator’s belief that all' of the property would not be disposed of within the year.
“ More doubt, perhaps, attaches to the remaining question. In the event of his death without issue, the testator declared his will to be that his whole estate, after his wife’s death, should be divided among his heirs or next of kin, as though he had died intestate and unmarried. The auditing judge found these words to be descriptive of so literal a dying without a will, as to obliterate all the provisions for a sale and investment of the real estate; and he therefore awarded a part of the proceeds, representing the real estate which had descended ex parte materna to the heirs on the mother’s side. In opposition to this rendering it is to be observed that immediately after this proviso for a distribution under the intestate laws, the testator confers the power to sell, and directs the payment oyer of the proceeds. May we not reasonably infer that the estate as thus proposed to be converted was in the mind of the testator when lie designated the parties who were to take? If we hold that, as to those parties, the will was to be treated as if it had never been written, we at once ignore all which precedes and follows the intestate clause, descriptive of the estate which was the subject of the gift. We must also ignore the appointment of the trustees, because the intestate clause expressly declares that the whole of the estate sliall vest in and be divided among the next of kin or heirs at law, as though the decedent had died intestate. The difficulty disappears with the statement that when the testator penned the clause in question he had already stamped his property with the character of personalty, and it was therefore of personal estate alone that his direction as to intestacy was predicated. We are told that, in doubtful cases, that construction is to be preferred which most nearly conforms to the statutes of distribution : Smith’s Estate, 11 liar. 9. But there is no disposition in what has been said to evade those statutes; the inquiry simply concerns the fund upon which the statutes are to operate. On the whole, we conclude that the testator, having •worked a conversion by his will, intended his estate to go as personalty to his next of kin, under the intestate laws.
This determination renders it unnecessary to consider the objections which were raised by the children of Joseph Perot, inasmuch as the parties through whom they claim could take only as heirs on the part of the mother, and have no interest in the personal estate of the decedent.
The other exceptions to the adjudication are therefore sustained.
Penrose, J., filed the following dissenting opinion :—
That a conversion of his real estate was not contemplated by the testator as a result of his direction to invest and keep invested is plain from the provision for the payment of “ taxes and repairs ” out of the income; and that an express order to sell, or its equivalent, is necessary to make realty pass as personal estate has been so often decided that the question is no longer an open one. See Patterson’s Appeal, 7 Norris 397. But, as if to guard against any possibility of mistake, the testator, who had created the trust and- made all the provisions with regard to sale and conveyance solely in the interest of his' wife and issue, declared in express terms that, should she die without issue (an event which occurred in his lifetime), his estate should go “ the same as though ” he had “ died intestate and unmarried,” to his heirs at law or next of kin.
Where there is no ambiguity in the words used, there is no room for interpretation. This principle was applied in the very recent case of Biddle’s Appeal, 39 Leg. Intell. 420, though the effect of a literal adherence to the language of the testator was to lead to a confessedly purposeless accumulation. Certainly astuteness seems out of place where, as here, its exercise is so directed as to take an estats from the natural heirs and give it to strangers to the blood of the purchaser.
Had the testator died intestate, it could not, of course, have been pretended that there -was a conversion, and his real estate would, under the intestate laws, have passed to his “ heirs.” Why, then, in the face of his express declaration, should it be supposed that he meant anything other or less than what he has said; and that, for the purpose of conversion and change of descent, he must, in spite of himself, be regarded as testate? What he has said is, “ it being my will that in the event of my dying without issue, that after the death of my wife the whole of my estate shall vest in, and be divided among, my next of kin or heirs at law, the. same as though I had died intestate and unmarried.”
Why does he use the word “ heirs ” if the lands were to pass as personalty ? What right have we to say, where both these terms are employed, and the estate consists of both realty and personalty, that they are used in the same sense, and that the word “ heirs ” the appropriate word for the devolution of real estate, is to be disregarded as redundant and of no legal effect %
We are told by the text-books that, “where a testator uses an additional word or phrase, he shall be presumed to have an additional meaning ;” that “ the construction is to be preferred which rejects nothing and gives effect to every word that “in doubtful'cases the interpretation is to conform as nearly as may be to the course of descentand that “ the heir is not to be disinherited by any forced construction, and all doubts are to be resolved in his favor.” Bredlinger v. Bredlinger, 2 Casey 132; Bender v. Dictrick, 7 W. & S. 284; Cowles v. Cowles, 3 Smith 176; France’s Appeal, 25 Smith 220; Rupp v. Eberly, 29 Smith 141.
The personal estate of this testator, amounting to over a million of dollars, and the real estate descending ex parte paterna, go, admittedly, to the next of kin. To give them in addition the lands descending ex parte materna, they not being 'of the blood of the purchasing ancestor, to the exclusion of the heirs who are, involves, in my opinion, a disregard of elementary principles, and an utter perversion of the language of the testator. Such a construction may well be called maledieta ex-posiiio quae corrumpit textum.
It only remains to add that the suggestion that the heirs were strangers to the decedent is not only unwarranted by the record or by anything found by the auditing judge, but is directly contradicted by the will itself, which gives large legacies to some of them.
A decree -was entered, in accordance with the opinion of the court, distributing the funds in question to and among the said Richard Penn Lardner and others, next of kin of said Perot Lardner, without distinction of blood, in equal shares.
From this decree three separate, appeals were taken, viz.:
I. Appeal of T. Downing Bindley, Hannah M. Bindley and Elizabeth D. Bindley.
■The specifications of error filed in this appeal were as follows :—
1. The court erred in awarding the proceeds of certain real estate, purchased by the mother of testator and which had descended to him- as her heir, to Richard Lardner et al. who were the next of kin of the testator, but were not the heirs of testator of lands which descended to him from his mother, and w’ere not of the blood of the mother.
2. The court erred in not awarding the said proceeds to T. Downing Lindley, Hannab M. Lindley and Elizabeth D. Liudlev, who were the persons entitled to the land, of which said fund were the proceeds, if the same had not been sold by the executor of the testator.
3. The court erred in not awarding to the appellants the rents of lands purchased by the mother of the testator, and which had descended to him as her heir.
4. The court erred in reversing the decree made by tlie auditing judge; whereas that decree should have been affirmed.
5. The court erred in deoiding.that the will worked a conversion of the land.
'6. The court erred in deciding that if there was a conversion by the will the effect of that conversion was to vest the proceeds in the persons entitled under the intestate laws; whereas by the will they were given, to the persons that would have taken the land in case of intestacy.
II. Appeal of "William S. Perot and Francis Perot.
The following were the specifications of error filed in this appeal:—
1. The court below erred in holding that the will of Perot Lardner, deceased, worked a conversion of his real estate.
2. The court below erred in distributing the balance of the rents and proceeds of the real estate descending ex parte materna among the next of kin of the decedent.
3. The court below erred in' not awarding the balance of tlie rents and proceeds of the real estate of said decedent, descending ex parte materna to the heirs of said decedent, who were of the blood of the first purchasers thereof.
III. Appeal of Joseph S. Perot, Elliston L. Perot, Effing-ham Perot, Hannah P. Morris, Samuel Morris, and Beulah M. Bhoads.
The following specifications of error were filed in this appeal :—
1. The learned court below erred in holding that the will of Perot Lardner worked a conversion of his real estate into personalty.
2. In decreeing distribution of the rents of real estate to.' the persons named in the decree of the court.
3. In dismissing the exceptions of the appellants.
4. In not decreeing that the appellants should have paid to them their due share of the rents of the real estate which became vested in Perot Lardner ex parte materna.
5. In not decreeing that the appellants take by representation the shares of the rents of the said real estate, which would have been payable to their respective parents, if living.
6. In not awarding to the appellants their due and full proportion of the said rents.
The said appeals I. and II. were argued together January 29th 1883, and the third appeal was argued separately on the following day.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
