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this proposition nor does he think the case third of his real estate, as contended for cited helps in the construction of the will by the accountants. Mr. Wanner subsein question. To this was also cited Dun- quently cited 12 Harris, supra, in refutacan v. Alt, 3 P. & W. 382. Some stress tion of the argument by Mr. Trimmer, was also laid by the gentleman on the that a fractional part of an estate can word "all'' in the bequest to the wife, now not be a specific legacy.

Mr. Bentzel, on behalf of the widow, the effect of the use of this word as con- argued that the intention of the testator tended for.

most certainly was that his widow should Fourth. The widow in selecting to take have, not only the interest of a clear oneunder the Will takes in lieu of dower and third of all his personal estate, but that she takes as a purchaser, citing Reed v. Reed, is entitled to a clear one-third, absolutely9 Watts 263; Stewart's Estate, 3 Weekly the fund itself—that the intention of the Notes 332 ; 2 Bouvier's Law Diction- | testator must be gathered from the Will ary 20.

itself, and that the Will means this and Fifth. Where a man mades a Will the nothing else. Mr. Bentzel cited 2 Williams

on Exec's 1563. intestate laws are suspended by the law the testator makes, and his personal pro

Mr. Trimmer, counsel for the accountperty is no longer first liable for the pay- ants, in reply, in the first instance, directed ment of his debts. This proposition in

the attention of the auditor to the cases the broad and sweeping terms in which it cited by counsel for the widow, alleging is couched the auditor cannot affirm, for that nearly all bear on the question of the reason contained in the citation from specific legacies, and argued their non apJustice Woodward, Supra, and for reasons plication to the case in hand, as it is not that will appear further on in this report. contended that the bequest to the widow

is a specific legacy. Sixth. Wherea man blends his real and

The learned counsel then announced the personal estate in his Will the land is chargeable with legacies; citing Galla- proposition that the personal estate, is in gher's Appeal, 12 Wright 121. Davis'

all cases of testacy as well as intestacy, the Appəal, 2 Norris 353.

primary fund for the payment of debts Mr. Wanner argued further that the Ex- is made liable in express terms, and the

unless, in cases of testacy the real estate ecutors here made the real estate assets for the payment of debts by petition to personal estate is explicity exempted by Court for order to sell the real estate and

the Will, or by the manifest intention of

the testator. the subsequent sale thereof. That is true, but the surplus must be treated as real

In support of this proposition he cited estate in this distribution. The gentleman Walker's Estate, 3 Rawle 229; Martin v. further argued that though the bequest Fry, 17 S. &. R. 429; Ruston v. Ruston, to the widow here, be not a special, or

2 Y 63; Todd v. Todd's Executors, i S. pecuniary, or demonstrative legacy, and though it may be a general legacy, it As to the legal meaning of the word must be first set apart to her, and hence "estate" the gentleman cited Mainly v. she is entitled to one-third of the personal Stainbach, 1 Am. Dec. 545. That the word estate undiminished by debts, expenses of “all” does not add anything to the terms administration of the estate or any other “one-third personal estate” he cited Huntlessening agency; arguing further that the ter's Estate, 6 Pa. St. R. 97; Turbet v. Turlaw does not forbid a testator from saying bet, 3

Yeates 187. and directing that his widow shall have He also cited Todd v. Todd, supra, to one-third of his personal estate, and one- show that the words—whole of my estate

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& R. 457

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mean after payment of debts. He ar- tribution be made of the estate in pursugued further that the bequest to the wid- ance of the Will." ow is not only not a specific legacy, but

Estate has been shown to mean perthat it is a general legacy, and also a resid- sonal property as well as real property, uary legacy after payment of debts.

by cases cited by counsel to accountants, The auditor has carefully read all the supra, and testator's intention to charge cases cited by all the gentlemen and be- his personal estate as well as his real eslieves that he has correctly stated the re- tate with the burthen of the payment of spective positions of all the learned coun- his debts in the auditor's opinion is manisel, as well as fairly epitomized their fest, to say nothing of the rule found in the respective arguments.

authorities cited by Mr. Trimmer, and reNow what does the Will in question ferred to supra, that the personal property itself say, and what was the testator's in

or proceeds thereof is the primary fund tention. The latter, all concerned agree,

for the payment of a testate's as well as must be gathered from within the four

an intestate's debts, unless the personal corners of the Will itself.

property or estate is explicity exempted

by the terms of a last Will and the burthen The testator directs inter alia, "That all of payment of debts is as explicitly by the my just debts, and funeral expenses (shall will imposed on the real estate. by my executors hereinafter named) be paid out of my estate as soon after

It is not contenced by any one that de

my cease as shall by them be found conveni- John Crone, by express and explicit terms ent.”

imposed this burthen upon his real estate,

and therefore the Executors committed no Item.

error in first exhausting the personal es“I give devise and bequeath to my be- tate in the payment of testator's debts. loved wife Rebecca Crone the interest of

It would be a mere affectation of learnone-third of all my personal estate absolutely and the interest of one-third of all ing on the part of the auditor to repeat

here what he understands to be the legal may real estate during her natural life."

definition of the various kinds of legacies, While it was pot necessary that the tes and to reason upon what the legal chartator should have directed that “my just acter of the bequest to the widow is and debts" * * * "shall” * * *“be paid out what it is not. The auditor therefore rules of my estate,” yet, the words here quoted that it was the intention of the testator have no little significance in our effort to John Crone, that his debts and funeral exascertain the mind of the testator, John penses should be paid if they consumed Crone. Woodward, Justice, in Hoff's his entire estate both real and personal, Appeal, 12 H. 203, in passing upon John in which particular he sinıply published Hoff's Will, uses this language, “The and re-iterated the law of the CommonWill contains in the introductory clause, wealth in this behalf, and that his widow, the usual direction as to payment of debts, | Rebecca Crone should have the interest a phrase which in England is necessary to of one-third of his personal estate, should charge debts on the realty, but wholly un- any be left after paying his debts and necessary here, where lands as well as per- funeral expenses ; (and had there been sonal estate are bound for every decedent's she would have been entitled to that onedebts. Still the words “after the payment third absolutely—the fund itself,) and to of my lawful debts, cannot be treated as the interest of one-third of his real estate; meaning nothing; and if they are to have and therefore the said widow Rebecca any significance, it must be that the Exec- Crone is entitled to this distribution under utors should pay the debts before dis- | the Will of her deceased husband as the auditor interprets and construes it, to have after the payment of the debts ; Bromsecured for her the one-third of the net field's estate, 8 Watts 465. balance of the funds in the hands of the But the question in this case in whether Executors after deducting the claims here. this is only a legacy to the widow after tofore allowed and the expenses of this payment of debts, or constructively so, as distribution—the annual interest on which in the case of Martin v. Fry, supra ?one-third shall be paid, (and secured to be It determining the question of distribupaid) to said Rebecca Crone, during life.

tion here, I think the learned auditor has To this finding of the Auditor excep- overlooked an important question of intions were filed by counsel for the widow. tention arising under the Will of the testa

tor, from the blending of the real and perE. D. Bentzel and N. M. Wanner for sonal estate. The testator has first providexceptions.

ed that all his debts and funeral expenses, D. K. Trimmer for report.

shall be paid out of his estate. Then after

his bequest and devise to his widow, he January 29, 1883. GIBSON, A. L.J.- directs, that all the rest and residue of my This case except in one feature of it, is not estate, real, personal and mixed shall be distinguishable from Martin v. Fry, 17 S. divided among my children share and & R. 426, decided more than fifty years share alike." Hence the real estate havago, and which, it seems, has never been ing been blended by the testator with the questioned, to the effect that the gift to a personal estate ; the charge is by implicawidow of one-third part of the personaltion upon both, and rest and residue" estate in lieu of dower, gives her no pre- means, what is left after the payment of ference over the children, as they are debts and legacies: Hassanclever v. Tuckequally the objects of the testator's boun- er, 2 Binney 525; McCredy's Appeal, 11 ty, and among whom the residue of the Wright 442; Jane Gallagher's Appeal, 12 estate was to be divided, but that the per- Wright 125; Davis' Appeal, 2 Norris 348. sonal estate was primarily liable for the The rule, therefore, is not that the perdebts, and she was entitled to only one sonalty shall be the primary and the realty teird of the remainder of the personalty the auxiliary fund for these charges, but after the payment of debts. Though in that each shall contribute ratably to the Reed v. Reed, 9 Watts, 263, where an common burden : 2 Jarman on Wills, annuity in a widow's favor was charged 550*. The widow is therefore entitled to upon real estate, and a sale of the estate one-third part of the balance of the pershowed a deficiency of proceeds to pay sonal estate after the payment of a prothe charges upon it, her annuity was held portionate share of the debts and to the not to abate, because having relinquished interest of one-third of the balance of the her dower she was entitled to a preference real estate after the payment of a proporover children. Being a purchaser of a tionate share of the debts. The report is legacy in lieu of dower, it is said in recommitted to the auditor for distribuSpangler's Estate, 9 W. & S. 135, that it tion accordingly. is a circumstance of decisive importance

[The Auditor filed a second report, in in a question of abatement between her and accordance with the Court's opinion. To collaterals or perhaps children. In this this report exceptions were filed by all case, the gift is of the interest of one-third

the parties concerned, which exceptions of the personal estate absolutely and of the

were set aside, and the report confirmed. interest of one-third of the real estate for life. It is conceded that the widow is en

An appeal to the Supreme Court from titled to one-third of the personal estate this decree has been taken by the accountabsolutely, if there is any such remaining ants.]


No. 5.

C. P. of

Adams Co.

YORK LEGAL RECORD. tual servitude upon the plaintiff's title.

The plea of right of way to trespass THURSDAY, APRIL 5, 1883.

qu. cl. fr. does not by any means admit an

absolute title in the plaintiff; Law v. COMMON PLEAS.

Hempstead, 10 Conn. 23; 2 Wheaton's
Selwyn's Nisi Prius 1362 n 1.

This plea was found against the de-
Mehring v. Sparver.

fendant, and the plaintiff is entitled to full CostsAct on to try right— Judge's Cer- costs : Wheaton's Selwyn 1374. tificate.

I am not at all surprised at the verdict. In an action of trespass quare clausum fregit, the de

The defendant was inconsistent and unfendant plead a right of way. The jury found for the plaintiff

, and upon a motion for the Judge's certificate just in placing obstructions even of a temuvon the verdict, so as to entitle the plaintiff to full costs HELD, That the Court will grant such certificate, where

porary character upon his premises at one the title to the laud is in question.

end That where the defendant seeks to prove a right of way

the road, and enclosing the road over the plaintiff's land, ii is such an action as tends to

within his upper lot and then insisting encumber his title, and would come within the statule

Motion for judgment on the verdict upon going with high hand ad libitum with full costs, and motion for judgment land, endeavoring to relieve himself of the

driving and walking over the plaintiff's without costs.

highway on his own land and to perpetThis was an action of trespass quare

uate it upon the plaintiff's, for the declausum fregit, to which the defendant fendants' personal benefit, and not only plead right of way. The jury found for this but after explicit notice in writing. the plaintiff, with nominal damages. A

Originally the Judges considered themmotion was then made by plaintiff for the selves absolutely bound to certify in all Judge's certificate that the question of cases where the trespass was after notice, title was raised, and that he be allowed but it is now held that the Judge has a full costs, while the defendant made a

discretion in the matter, but the discretion counter motion for judgment without such

will generally be exercised in favor of the costs.

plaintiff when notice has been given ; 2 March 21, 1883. Wm. McCLEAN, P.J. Addison on Torts s. 1418, p. 673. It was said long ago in Buller's Introduc- Whenever a defendant in an action for tion to the law relative to trials at Nisi a tresspass upon the plaintiff's land sets up Prius p. 330; Brightly on costs p. 24; a bona fide claim to the enjoyment of some that Judges have differed as to their no- easement, privilege or profit thereon, and tions of giving these certificates; many has any colorable ground for the claim, having thought themselves bound by the the action is brought to try a right, and verdict; others thinking the statute meant the judge ought to certify to that effect to leave it to their discretion on the whole upon the record; 2 Addison on Torts p. circumstances of the case. And this seems | 666 s. 1410. This action was distinctly to be now the prevailing opinion, as and according to the very words of the otherwise the statute would be entirely i defendant himself, to try whether he has useless. This view has received legisla a right to do the act of which the plaintiff tive embodiment in the repealing statute complains. Whenever the plaintiff seeks 3 and 4 Vict. c. 24, s. I and by the Judica- to negative the right of the defendant to ture Act of 1875. This was not a trifling do the act of which he complains, the acsuit. It was commenced in this court for tion may be brought to try a right beyond the purpose of maintaining the plaintiff's the mere question of damages, precisely absolute title in his land.

as was done in this case. “Suppose,” obThe defence rested upon the plea of serves Tindal, C. J., “a case can be put highway and sought to impose a perpe- of a declaration of trespass (although I


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do think it can) in which a right could made the 6th day of September, 1887: not by possibility come in question, still, Item. All the rest, residue and remainder if it should appear to the judge that the of my Estate, Real, personal and mixed, plaintiff had really intended to try a right, of what nature, kind and quality soever, I conceive that the judge would have the same may be, and not herebefore power to certify.

given and disposed of, after paying my If an action be really brought to try a just debts (if any) legacies, funeral and right, whether it is calculated for that other expenses, I give and bequeath unto purpose, or not, the party is within the the Home and Foreign Missionary Society letter, and, as it seems to me, also within of the United Brethren in Christ, said sothe spirit of the Act."

ciety being organized in the State of Although this was under the statute of Ohio." The ground upon which this is

" 3 and 4 Vict. 34 S 1, we have virtually asked is that the testatrix made a codicil,

legislative and judicial construction of written on her will, on the 14th day of power and discretion of the judge in such March, 1881, within one calendar month cases under the statute of 22 and 23 Car. of her death, which event occurred on the 2. C. 9.

4th day of April, 1881. It is contended See also Jones v. Thomas, 11 A. & E. that this codicil was a republication of the 153; 8 D. P. C. 99; Jacob's Fisher's Di- will, and that hence the will speaks from gest 2608.

the date of the codicil, and the legacy is Defendant's motion refused and plain- void by the provisions of the 11th section tiff's motion granted.

of the Act of 26 April, 1855, P. L. 332.

Bright. Purd. 1477, pl. 22, which enacts ORPHANS' COURT.

as follows:

"That no estate, real and personal, shall Lohr's Estate.

hereafter be bequeathed, devised or conWill--Codicil to-Effect of–-Charitable veyed to any body politic, or to any per

son, in trust for religious or charitable uses, Testatrix in the body of her will bequeathed the residue except the same be done by deed or will, of her estate to charitable uses. within a month prior to attested by two creditible, and at the time her death she made a codicil to the will. HELD, That the codicil so made did not bring the bequest in the will disinterested witnesses, at least one calenwithin the Act of 1855. The Act of 1879 enacting that "every will shall be con

dar month before the decease of the testastrued, with reference to the real and personal estate

tor or alienor; and all dispositions of procomprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will,' perty contrary hereto, shall be void, and relates to the subject of the devise and bequest, and not the object of the gift.

go to the residuary legatee or devisee, Exceptions to the report of S. H. Forry, next of kin, or heirs, according to law.”' Auditor.

By the first section of the Act of June, The question of law involved is given 1879, P. L. 88, it is enacted as follows :

“That every will shall be construed, with in the Court's opinion.

reference to the real and personal estate Wm. C. Chapman and C. M. Wolff comprised in it, to speak and take effect for exceptions.

as if it had been executed immediately beWm. Hay for report.

fore the death of the testator, unless a conApril 21, 1883. GIBSON, A. L. J.- trary intention shall appear by the will. The Court is asked to reverse the deci- Hence, by parity of reasoning, if the period sion in this distribution, awarding to the from which a will speaks is to govern, in Home, Frontier and Foreign Missionary such a case as this, there can be no devise Society of the United Brethren in Christ, or bequest to a charitable use ever made, the sum of $12,389.84, under the follow- for the act says a will shall "take effect ing clause in the will of Christiana Lohr, as if it had been executed immediately be


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