this proposition nor does he think the case cited helps in the construction of the will in question. To this was also cited Duncan v. Alt, 3 P. & W. 382. Some stress was also laid by the gentleman on the word "all" in the bequest to the wife, now widow; but the Auditor fails to perceive the effect of the use of this word as con

tended for.

Fourth. The widow in selecting to take under the Will takes in lieu of dower and takes as a purchaser, citing Reed v. Reed, 9 Watts 263; Stewart's Estate, 3 Weekly Notes 332; 2 Bouvier's Law Dictionary 20.

Fifth. Where a man mades a Will the intestate laws are suspended by the law the testator makes, and his personal property is no longer first liable for the payment of his debts. This proposition in the broad and sweeping terms in which it is couched the auditor cannot affirm, for the reason contained in the citation from Justice Woodward, Supra, and for reasons that will appear further on in this report.

Sixth. Where a man blends his real and personal estate in his Will the land is chargeable with legacies; citing Gallagher's Appeal, 12 Wright 121. Davis' Appeal, 2 Norris 353.

Mr. Wanner argued further that the Executors here made the real estate assets for the payment of debts by petition to Court for order to sell the real estate and the subsequent sale thereof. That is true, but the surplus must be treated as real estate in this distribution. The gentleman further argued that though the bequest to the widow here, be not a special, or pecuniary, or demonstrative legacy, and though it may be a general legacy, it must be first set apart to her, and hence she is entitled to one-third of the personal estate undiminished by debts, expenses of administration of the estate or any other lessening agency; arguing further that the law does not forbid a testator from saying and directing that his widow shall have one-third of his personal estate, and one

third of his real estate, as contended for by the accountants. Mr. Wanner subsequently cited 12 Harris, supra, in refutation of the argument by Mr. Trimmer, that a fractional part of an estate can not be a specific legacy.

Mr. Bentzel, on behalf of the widow, argued that the intention of the testator most certainly was that his widow should have, not only the interest of a clear onethird of all his personal estate, but that she is entitled to a clear one-third, absolutely— the fund itself—that the intention of the testator must be gathered from the Will itself, and that the Will means this and

nothing else. Mr. Bentzel cited 2 Williams on Exec's 1563.

Mr. Trimmer, counsel for the accountants, in reply, in the first instance, directed the attention of the auditor to the cases cited by counsel for the widow, alleging that nearly all bear on the question of specific legacies, and argued their non application to the case in hand, as it is not contended that the bequest to the widow is a specific legacy.

The learned counsel then announced the proposition that the personal estate, is in all cases of testacy as well as intestacy, the primary fund for the payment of debts, unless, in cases of testacy the real estate is made liable in express terms, and the personal estate is explicity exempted by the Will, or by the manifest intention of the testator.

In support of this proposition he cited Walker's Estate, 3 Rawle 229; Martin v. Fry, 17 S. &. R. 429; Ruston v. Ruston, 2 Y 63; Todd v. Todd's Executors, 1 S. & R. 457.

As to the legal meaning of the word "estate" the gentleman cited Mainly v. Stainbach, 1 Am. Dec. 545. That the word "all" does not add anything to the terms "one-third personal estate" he cited Huntter's Estate, 6 Pa. St. R. 97; Turbet v. Turbet, 3 Yeates 187.

He also cited Todd v. Todd, supra, to show that the words-whole of my estate

-mean after payment of debts. He argued further that the bequest to the widow is not only not a specific legacy, but that it is a general legacy, and also a residuary legacy after payment of debts.

tribution be made of the estate in pursuance of the Will."

Estate has been shown to mean per

sonal property as well as real property, by cases cited by counsel to accountants, supra, and testator's intention to charge his personal estate as well as his real estate with the burthen of the payment of his debts in the auditor's opinion is manifest, to say nothing of the rule found in the authorities cited by Mr. Trimmer, and re

itself say, and what was the testator's intention. The latter, all concerned agree, must be gathered from within the four corners of the Will itself.

The testator directs inter alia, "That all my just debts, and funeral expenses (shall by my executors hereinafter named) be paid out of my estate as soon after my decease as shall by them be found conveni

ent."

Item.

"I give devise and bequeath to my beloved wife Rebecca Crone the interest of one-third of all my personal estate absolutely and the interest of one-third of all may real estate during her natural life."

While it was not necessary that the testator should have directed that "my just debts"***"shall" *** "be paid out of my estate," yet, the words here quoted have no little significance in our effort to ascertain the mind of the testator, John Crone. Woodward, Justice, in Hoff's Appeal, 12 H. 203, in passing upon John Hoff's Will, uses this language, "The Will contains in the introductory clause, the usual direction as to payment of debts, a phrase which in England is necessary to charge debts on the realty, but wholly unnecessary here, where lands as well as personal estate are bound for every decedent's debts. Still the words "after the payment of my lawful debts," cannot be treated as meaning nothing; and if they are to have any significance, it must be that the Executors should pay the debts before dis

or proceeds thereof is the primary fund for the payment of a testate's as well as an intestate's debts, unless the personal property or estate is explicity exempted by the terms of a last Will and the burthen

of payment of debts is as explicitly by the Will imposed on the real estate.

It is not contenced by any one that John Crone, by express and explicit terms imposed this burthen upon his real estate, and therefore the Executors committed no error in first exhausting the personal estate in the payment of testator's debts.

It would be a mere affectation of learn

ing on the part of the auditor to repeat here what he understands to be the legal definition of the various kinds of legacies, and to reason upon what the legal character of the bequest to the widow is and what it is not. The auditor therefore rules that it was the intention of the testator John Crone, that his debts and funeral expenses should be paid if they consumed his entire estate both real and personal, in which particular he simply published and re-iterated the law of the Commonwealth in this behalf, and that his widow, Rebecca Crone should have the interest of one-third of his personal estate, should any be left after paying his debts and funeral expenses; (and had there been she would have been entitled to that onethird absolutely-the fund itself,) and to the interest of one-third of his real estate; and therefore the said widow Rebecca Crone is entitled to this distribution under the Will of her deceased husband as the

auditor interprets and construes it, to have secured for her the one-third of the net balance of the funds in the hands of the Executors after deducting the claims heretofore allowed and the expenses of this distribution-the annual interest on which one-third shall be paid, (and secured to be paid) to said Rebecca Crone, during life. To this finding of the Auditor exceptions were filed by counsel for the widow.

E. D. Bentzel and N. M. Wanner for exceptions.

D. K. Trimmer for report.

January 29, 1883. GIBSON, A. L. J.This case except in one feature of it, is not distinguishable from Martin v. Fry, 17 S. & R. 426, decided more than fifty years ago, and which, it seems, has never been questioned, to the effect that the gift to a widow of one-third part of the personal estate in lieu of dower, gives her no preference over the children, as they are equally the objects of the testator's bounty, and among whom the residue of the estate was to be divided, but that the personal estate was primarily liable for the debts, and she was entitled to only oneteird of the remainder of the personalty after the payment of debts. Though in Reed v. Reed, 9 Watts, 263, where an annuity in a widow's favor was charged upon real estate, and a sale of the estate showed a deficiency of proceeds to pay the charges upon it, her annuity was held not to abate, because having relinquished her dower she was entitled to a preference over children. Being a purchaser of a legacy in lieu of dower, it is said in Spangler's Estate, 9 W. & S. 135, that it is a circumstance of decisive importance in a question of abatement between her and collaterals or perhaps children. In this case, the gift is of the interest of one-third of the personal estate absolutely and of the interest of one-third of the real estate for life. It is conceded that the widow is entitled to one-third of the personal estate absolutely, if there is any such remaining

after the payment of the debts; Bromfield's estate, 8 Watts 465.

But the question in this case in whether this is only a legacy to the widow after payment of debts, or constructively so, as in the case of Martin v. Fry, supra?It determining the question of distribution here, I think the learned auditor has overlooked an important question of intention arising under the Will of the testator, from the blending of the real and personal estate. The testator has first provided that all his debts and funeral expenses, shall be paid out of his estate. Then after his bequest and devise to his widow, he directs, that "all the rest and residue of my estate, real, personal and mixed shall be divided among my children share and share alike." Hence the real estate having been blended by the testator with the personal estate; the charge is by implication upon both, and "rest and residue” means, what is left after the payment of debts and legacies: Hassanclever v. Tucker, 2 Binney 525; McCredy's Appeal, 11 Wright 442; Jane Gallagher's Appeal, 12 Wright 125; Davis' Appeal, 2 Norris 348. The rule, therefore, is not that the personalty shall be the primary and the realty the auxiliary fund for these charges, but that each shall contribute ratably to the common burden: 2 Jarman on Wills, 550*. The widow is therefore entitled to one-third part of the balance of the personal estate after the payment of a proportionate share of the debts and to the interest of one-third of the balance of the real estate after the payment of a proportionate share of the debts. The report is recommitted to the auditor for distribution accordingly.

[The Auditor filed a second report, in accordance with the Court's opinion. To this report exceptions were filed by all the parties concerned, which exceptions were set aside, and the report confirmed. An appeal to the Supreme Court from this decree has been taken by the accountants.]

VOL. IV.

THURSDAY, APRIL 5, 1883.

No. 5.

COMMON PLEAS.

C. P. of

Mehring v. Sparver.

Adams Co.

tificate.

In an action of trespass quare clausum fregit, the defendant plead a right of way. The jury found for the plaintiff, and upon a motion for the Judge's certificate upon the verdict, so as to entitle the plaintiff to full costs HELD, That the Court will grant such certificate, where the title to the land is in question.

That where the defendant seeks to prove a right of way over the plaintiff's land, it is such an action as tends to encumber his title, and would come within the statute

Motion for judgment on the verdict Motion for judgment on the verdict with full costs, and motion for judgment

without costs.

This was an action of trespass quare clausum fregit, to which the defendant plead right of way. The jury found for the plaintiff, with nominal damages. A motion was then made by plaintiff for the Judge's certificate that the question of title was raised, and that he be allowed full costs, while the defendant made a counter motion for judgment without such

costs.

March 21, 1883. WM. MCCLEAN, P. J. It was said long ago in Buller's Introduction to the law relative to trials at Nisi Prius p. 330; Brightly on costs p. 24; that Judges have differed as to their notions of giving these certificates; many having thought themselves bound by the verdict; others thinking the statute meant to leave it to their discretion on the whole circumstances of the case. And this seems to be now the prevailing opinion, as otherwise the statute would be entirely useless. This view has received legislative embodiment in the repealing statute 3 and 4 Vict. c. 24, s. I and by the Judicature Act of 1875. This was not a trifling suit. It was commenced in this court for the purpose of maintaining the plaintiff's absolute title in his land.

The defence rested upon the plea of highway and sought to impose a perpe

I am not at all surprised at the verdict. The defendant was inconsistent and unjust in placing obstructions even of a temporary character upon his premises at one end of the road, and enclosing the road within his upper lot and then insisting upon going with high hand ad libitum driving and walking over the plaintiff's land, endeavoring to relieve himself of the highway on his own land and to perpetuate it upon the plaintiff's, for the defendants' personal benefit, and not only this but after explicit notice in writing.

Originally the Judges considered themselves absolutely bound to certify in all cases where the trespass was after notice, but it is now held that the Judge has a discretion in the matter, but the discretion will generally be exercised in favor of the plaintiff when notice has been given; 2 Addison on Torts s. 1418, p. 673.

Whenever a defendant in an action for a tresspass upon the plaintiff's land sets up a bona fide claim to the enjoyment of some easement, privilege or profit thereon, and has any colorable ground for the claim, the action is brought to try a right, and the judge ought to certify to that effect upon the record; 2 Addison on Torts p. 666 s. 1410. This action was distinctly and according to the very words of the defendant himself, to try whether he has a right to do the act of which the plaintiff complains. Whenever the plaintiff seeks to negative the right of the defendant to do the act of which he complains, the action may be brought to try a right beyond the mere question of damages, precisely as was done in this case. "Suppose," observes Tindal, C. J., "a case can be put of a declaration of trespass (although I