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some respects very peculiar. It fails tosions of this will, including all the speindicate with any precision the respective cific sums bequeathed to parties named shares which the parties whom he calls therein. The testator at first blush, seems his “heirs" in the latter clause of the will to have died practically intestate as to are to receive; 'though he evidently in the other property which he held at the tends them to share in the distribution of date of his death. But such was evidenthis estate, as well as the parties specifi- ly not his intention, for he evidently had cally named.

in his mind a disposition of his property, After providing for the payment of his which would in the cases of Anna Amelia debts he gives to his nieces, Eliza W. Hay, Mary Myers, Eliza W. Fahs and Fahs, and Ellen R. Fahs, the house and Ellen R. Fahs, vary the amounts which lot at No. 303 West Market street, York, they would be otherwise entitled to rePa., closing the devise with these words, ceive under the intestate laws. He di"This I give outside their share going to rects the sale of his real estate to the best them of the share that would be going to advantage of his heirs generally, naming their mother, if living.'

one and making no devise, or beThe attention of the auditor was called quests, of the proceeds of such sale. to this peculiar expression, as well as to Neither does he anywhere indicate the others that follow, as indicative of the relative parts or proportions that are to testator's desire, that his estate should go to his several “heirs," for whose adlbe distributed per stirpes, and not per vantage the real estate is to be sold. capita, among the descendants of his de

Some testimony was offered, to show ceased brothers and sisters.

that on or about the date of the execuThe next item is as follows: “I give tion of this will by the testator, he was and bequeath to Anna Amelia Hay three concerned in the partition of the real eshundred dollars ($300.00) outside of her tate of Charlotte Worley, deceased, which share, for staying at home and taking he accepted at the valuation thereof, and care of her mother," which language paid out of the proceeds thereof, under a seems to indicate a like intent in the per stirpes distribution, among the demind of the testator.

scendants of the deceased brothers and After setting aside the sum of one hun- sisters of the decedent. It also appears dred ($100.00) for the purpose of keep- that he was advised by counsel at that ing his own and the graves of severai time that such was the proper method of other parties named, in good order and distribution. condition, he also provides for the divi This evidence was offered in connecsion of his clothes among his personal tion with the peculiar language of this friends.

will, as corroborative of the testator's apHe then proceeds as follows, “But it is parent intent, that his estate should go my will that seven hundred dollars to his heirs as it would have done under ($700.00) shall be taken from the share the intestate laws, without a will, except of Mary Worley intermarried with Peter in those instances above noted in which

Vlvers, and be equally livided with her he had made specific bequests and debrother, George C. Worley's seven chil-vises to particular. parties. dren, &c."

All of these things, indicate an intenIt is observed that in this item he tion on the part of the testator, that his speaks of Mary Worley's share in his es- heirs generally, of vhem he nowhere extate, the amount of which, however, or cluded anyone entirely, shall receive the its proportion to the others he fails to in- residuum of his estate, after the payment dicate in express terms.

of his debts, and the specific bequests The final clause of his will, directs the above referred to. sale of two lots of ground by his execu The provisions of the will considered tor, "to the best advantage of my heirs," as a whole, and especially in the light of twice repeating the phrase. The testator this testimony, and of the expressions having failed in his will to name an ex- used therein in regard to the shares of ecutor, letters of administration were Anna Amelia Hay, Mary Vyers, and the granted on his will to the accountant, on Misses Fahs, indicate clearly enough to the 23rd day of January, 1892.

the mind of your auditor, that the intenThe above are all the material provi- tion of the testator was that his estate

should be distributed to his heirs in such or necessary implication; Rupp v. Eberly,
shares as they would have taken under 99 Pa. 141; Howe's Appeal, 126 Pa. 241 ;
the intestate laws, subject to the varia- De Silver's Estate, 142 Pa. 74.
tions from that rule of distribution, which No intention in favor of a claimant,
he indicates in the special provisions against the statute, can avail liim, that is
above referred to.

not expressed in the written will. If the To this report the following exceptions expressed intention is inadequate for his were filed :

purposes, the law of the land and the title The Auditor erred in distributing the of the heir must prevail; and all doubt balance on the account of the Adminis- about its inadequacy must operate to his tratrix of said George Worley, deceased, prejudice; Brendlinger v. Brendlinger, among the children of his deceased sis- 26 Pa. 131. ters and brothers per stirpes.

“The intestate laws must control quesThe Auditor erred in not distributing tions of distribution arriving upon the the balance upon the said account to the settlement of estates of testators as well nephews and nieces of the said decedent as intestates, unless the testator has clearper capita.

ly provided a different mode in his will; The Auditor erred in his construction Hoch's Estate, 154 Pa. 417. of the will of the said decedent.

But all artificial rules must yield to the The Auditor erred in finding that unintention of the testator, to be gathered der the law and the said will the estate of from his whole will, whether cxpress or the said testator should be distributed to implied; Harris' Estate, 74 Pa. 452. his nephews and nieces per stirpes instead Where the meaning of the devise is of per capita.

uncertain the law will adhere as closely The Auditor erred in his report of dis- as possible to the general rules of inheritribution and in only awarding therein to tance, and whoever claims against the the said exceptants one-third of the bal- line of descent must show a satisfactory ance of distribution.

written title; Rupp v. Eberly, supra; Stewart, Niles & Neff for exceptions. Lipman's Appeal, 30 Pa. 180. Cochran & Williams for repurt.

With these beacon lights to guide us, February 26, 1894. BITTENGER, J:- we proceed to analyze and consider the The exceptions to the auditor's report in- will in question. We look in vain in the volve the construction of the last will and will for any residuary devise, either extestament of George Worley, deceased. press or implied and under the well esThe auditor having quoted the material tablished principles above cited, governparts of the will we need not here quote ing the construction of wills, there can be said clauses.

no extrinsic testimony to show an intenSome well established rules, as to the tion to devise in a particular way, what construction of wills are as follows: is not devised at all. There is no latent

The first great rule in the interpreta- ambiguity to explain, and therefore no tion of a will is to look for the intention room for evidence, to show the testator's of the testator. When that intention can intention. The evidence taken by the 'be determined from the will itself and is auditor, and mentioned in his report, inconsistent with the artificial rules, the even if otherwise entitled to any weight, testator's intention must prevail; Os could not, therefore, afford a basis to any burn's Appeal, 104 Pa. 643 ; Baker and extent, for the interpretation of the will, Wheeler's Appeal, 115 Pa. 590.

either by the auditor or the court. We “The mind of the testator is to be de- regard the testator's expression, in conveloped, but that can only be, except in nection with the devise to Eliza W. Fahs some cases of latent ambiguity, by the and Ellen R. Fahs, "outside of the share will itself”; McKeehan v. Wilson, 53 Pa. coming to them of the share that would 74.

be coming to their mother if living,” as The question, in expounding a will, is only matter of explanation, to indicate not what the testator meant, but what is that they are to have the real estate dethe meaning of his words; Hancock's vised in addition to the share of his Appeal, 112 Pa. 522.

nephews and nieces, his heirs, all in the Another rule is, that the heir is not to same degree. Nothing is said about the be disinherited except by express words / father's or mother's share in the bequest

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X**k Legal Resud. legacy to Anna Amelia Hay, proper cred

its for payments since filing the account, Vol. VII. THURSDAY, MAY 31, 1894. No. 51. and costs of audit must be to the nephews

and nieces of the testator, per capita, to Anna Amelia Hay, and the children with the change prescribed in the will as of George C. Worley, deceased.

to the share of Mary Myers; first awardIt is true the testator orders his re- ing said legacy of three hundred dollars maining real estate to be sold by his ex- to Anna Amelia Hay. ecutor, "to the best advantage of his The exceptions are sustaine 1 and the heirs,” but this was for the purposes of report of the auditor is set aside; and the conversion, to the best advantage, and same is recommitted to the auditor, with can not be held as a devise of the pro-directions to make distribution in accordceeds of sale by implication as claimed. ance with this opinion. The intention of the testator to change the course of descent and inheritance pre

Finley's Estate. scribed by law, must be evidenced by expressions in the will, free from doubt. Administration - Citation to accountThere is no such intent clearly expressed

Limitation-Evidence. in this will.

Petitioner asked for a citation on L., adminAs to the word “heirs" used by the istrator of F, to file his intestate's account as

administrator of J., twenty-seven years after testator, near the conclusion of the will, J.'s death. Held, that the citation must be disthey must be held to refer to his heirs at missed. law. "The testator's heirs can only be After such a lapse of time, the presumption ascertained by resorting to the statute of has arisen that the estate was settled and the distribution”; Baskin's Appeal, 3 Pa. full distributive share of the petitioner paid to 304; McKees's Appeal, 104 Pa. 571.

her, and it requires satisfactory and con

vincing evidence to rebut such presumption. "Why then should the testator make a will if he mean; it should operate as the petitioner or her husband, are competent to tes

Neither the surviving, co administrator, the statute would operate without it? He tify to any matter occurring in the lifetime of may desire to give legacies to those who the deceased administrator, the effect and purwould take nothing under the statute, or pose of such testimony being to charge his increase portions to some who wouli

Evidence that no administration account was take;" Risk's Appeal, 52 Pa. 269.

filed, the collection of a judgment by L. beThe motive for the making of the will longing to his intestate, and some vague and under consideration was, manifestly, for equivocal statements made by him but not the purpose of providing for Eliza w. amounting to an admission of indebtedness nor

a promise to pay, are insufficient to rebut the Fahs, Ellen R. Fahs, Amanda Hay and the children of George C. Worley, in ad- presumption of payment to this petitioner of dition to what they would have taken in the absence of a will. Having made

Petition for a citation. these provisions and ordered his remain The petition filed in this case set forth: ing real estate to be sold, by his execu That the said John Findley died in tor, “to the best advantage of his heirs," 1866, intestate, leaving to survive him the testator rested content, without fur- issue four children, to wit: S. J. Findley, ther words of bequest or testamentary Lysander W. Findley, Mrs. E. E. Ramdisposition of his property and estate. In say, and the petitioner, and seized and the absence of such further testamentary possessed of real and personal estate: disposition of his estate, it is distribut That on the 14th day of February, able under the statute, which is held by 1866, letters of administration on the esthe courts to be the favorite mode of state of said intestate were granted by the transmission of estates in Pennsylvania. Register for the probate of wills an 1

It follows from these conclusions that granting of letters of administration in the auditor erred in distributing the resi- and for said county, to said S. J. Findley due of testator's estate per stirpes, among and Lysander W. Findley, who took upon the children of his, testator's biother and themselves the duties of said trust and on sisters. The Jistribution of the balance the 14th day of March, 1866, filed in the on the account after deducting the $300 office of the Register an Inventory and

estate.

Appraisement of the personal estate of the personal property contained in said said intestate, amounting to $2,791.35, intentory and all the judgments, bonds, and on the 30th day of April, 1866, fileu notes and evidences of indebtedness, book in said Register's office a vendue list of accounts and papers of or belonging to the personal estate of said intestate sold said estate or pertaining thereto and by them at public sale amounting to transacted and performed all the business $1,041.92.

of the settlement thereof and collected That more than one year has elapsed and received all the moneys coining to or since said letters of administration were belonging to the said estate and made all granted. That the said S. J. Findley and the disbursements required on account Lysander W. Findley neglected to ex- thereof. And further that your respondhibit and file an account and settlement ent did not take any part nor have anyof said estate in the office of the Register thing to do with the making or causing of said county.

to be made and filed, the said inventory That the said Lysander W. Findley and appraisement, and did not take posdied on the 23rd day of January, 1893, session of or have the custody or control intestate, leaving said S. J. Findley to or management of any of the personal essurvive him.

tate of the said deceased; and did not reThat on the first day of February, ceive or collect any of the proceeds of the 1893, letters of administration on the es- sale of said personal property at any tate of said Lysander W. Findley, je-time whatever; nor did he make any

colceased, were granted by said Register to lection of any of the judgment, bonds Lemon Love of the City of York in said notes or book accounts of the estate or at county.

any time receive any of the proceeds That the said S. J. Findley, surviving thereof; but the entire business of the administrator of the estate of said John said administration was undertaken and Findley, deceased has neglected to ex- performed by the said Lysander W. Findhibit and file in the office of the Register ley who received the entire proceeds of of said county an account and settlement all the personal property of every deof the estate of said John Findley, description belonging to the estate of the ceased.

said deceased, and never paid any of the That the said Lemon Love, adminis- said proceeds or funds over to this retrator of the estate of said Lysander W. spondent. Findley, deceased, has neglected to ex Second. Because your respondent has hibit and file in the office of the Register not had access to and the privilege of exof said County an account and settlement amining certain papers and accounts of of the estate of said John Findley, de- the said Lysander W. Findley, deceased, ceaseil, by his said intestate.

pertaining to this estate or touching the And then asked for a citation on S. J. same, which are believed to be in the Findley and Lemon Love to file such ac- possession of or under the control of count.

Lemon Love, the administrator of the To this petition S. J. Findley answered said Lysander W. Findley, deceased; and that he could not comply with this re- your respondent also represents that leave quest.

has been asked of said Lemon Love, so to First. Because although letters of ad do, which request has not been acceded ministration upon said estate were grant-to. And further your responi lent says ed to the respondent and to the said Ly that he has no funds, moneys, or personal sander W. Findley together, the said Ly: property of any kind of or belonging to sander W. Findley, now Jeceased, took said estate in his hands or control at this upon himself solely the administration of

time and has not had the same at any the said estate and caused an inventory time in the past. and appraisement of the personal estatc

While Lemon Love asserted, of the said intestate to be made and filed in the said Register's office, amounting to

That said administrators of John Find$2,791.55, and also made sale of the per- ley, deceased, did, as he is informed and sonal estate of the said deceased and filed believes, make full settlement of the pera vendue list thereof in the said office, sonal estate of their said intestate, and amounting to $1,041.92; and also the pay to the petitioner and all persons said Lysander W. Findley took into his (other than themselves as to whom your sole possession, custody and control all respondent saith not) all moneys and dis

I.

tributive shares due coming and belong- county belonging to the estate of said ing to her and them from and out of said John Findley, deceased, which judgments estate and from said Samuel J. Finley were included in the Inventory and Apand Lysander W. Findley, administrators praisement of the personal estate of said as aforesaid; also

deceased, filed by said administrators That he is advised and believes that, March 12, 1866, to wit, Judgment entered more than twenty-one years having elaps- April 19, 1858, to No.784 January Term, ed since the death of said John Findley 1858, in favor of John E. Collins against and the issue of letters of administration Daniel Gordon for $600.00, and assigned on his estate to said Samuel J. Findley to said John Findley, April 20, 1861. and Lysander W. Findley, the law pre- And judgment entered February 21, sumes that an account in the estate of 1862, No. 25 January Term, 1862, in fasaid John Findley, Jeceased, was settled vor of John J. Turner and John J. Holwithin a year from the time of the issuing loway, who survived Francis Turner, of said letters, and that the estate was partners, lately doing business under the distributed among those entitled thereto, firm of J. J. & F. Turner, against Daniel and that therefore he is not required by Gordon for $142.45 and assigned to John law to file any such account as is referred Findley March 26, 1862. to in said citation.

That said judgment, No. 784, January Nothing daunted, the petitioners re- Term, 1858, was revived on scire facias plied:

at the suit of said Lysander W. Findley, That the said administrators of February 8, 1872, No. 42, January Term, said John Findley, deceased, did not 1872, and judgment entered thereon for make a full settlement, of the personal the use of L. W. Finley, administrator of estate of said deceased.

the estate of John Findley, deceased, 2. That neither the said S. J. Findley against Daniel Gordon for $704.33. That nor the said Lysander W. Findley, ad- said judgment No. 25, January Term, ministrators as aforesaid, ever settled any 1862, was revived on scire facias at the account, jointly or severally, of the per- suit of said Lysander W. Finley, Februsonal estate of said John Findley, de- ary 8, 1872, to No. 41, January Term, ceased.

1872, for the use of L. W. Finley, admin3. That the said administrators did istrator of the estate of John Findley, not pay the petitioner any money or dis- deceased, against Daniel Gordon for tributive share of the personal estate of $227.62. said deceased, nor did either of the said That the principal sums of said two administrators pay to the petitioner any judgments obtained on writs of scire money or distributive share of the per- facias as aforesaid for the use of said L. sonal estate of said John Findley, de- W. Findley, with three years interest ceased.

thereon, principal and interest on the 4. That the presumption of payment same aggregating the sum of one thou: arising from the lapse of time, as pleade1 sand ninety-three dollars and forty cents by said Lemon Love in his answer to said ($1,093.40), were paid to said Lysander citation, to wit: “That an account in the W. Findley, in the year 1875 by William estate of said John Findley, deceased, Kilgore and Robert S. Scott, assignees was settled by said administrators within of Daniel S. Gordon, in trust for the bena year from the time of the granting of efit of creditors, the two said judgments said letters of administration, and that having been liens upon the real estate asthe estate was distributed among those signed to them as aforesaid, for which entitled thereto, and therefore he is not payment the said assignees took credit in required by law to file any such account their account of the assigned estate of as referred to in said citation," is rebut said Daniel S. Gordon, filed in said Court ted, as the petitioner is advised and be- of Common Pleas May 6, 1875, satisfaclieves, by the fact that in the year 1872, tion being entered for said two judgments six years after said letters of administra- on the same day on which the account of tion were granted on the estate of said said assignees was filed. John Findley, deceased, sail Lysander The said two judgments were revived W. Findley revived two judgments in the by said Lysander W. Findley as adminCourt of Common Pleas of said York istrator of said John Findley, deceased,

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