delivered the opinion of the Court January 4th, 1886.
This is a proceeding, instituted in the Orphans’ Court of Allegheny County, on behalf of Nancy A. Springer, widow of Joseph Springer, deceased, in part, to enforce payment of a certain alleged legacy, which it k claimed is charged on the lands of William A. Springer, under the last will and testament of his father, the said Joseph Springer, deceased. The clause of the will out of which this contention arises is as follows, viz.: —
“ Again, to my wife Nancy, I allow the use of the farm on which I now live, during her natural life, for which she is to support my two sons, Horace and William A. Springer.”
“ And when the said William A. Springer arrives at the age of twenty-one years, he is to have the refusal of renting the farm from his mother, by paying her one half of everything that is raised on the farm; also, to be equal shares with her in supporting my son Horace.”
“ At the death of my wife, I bequeath the farm on which I now live to my son, William A. Springer, binding him to take good care of my son Horace, for and during his natural life.”
At the death of Joseph Springer, the father, December 6th, 1861, William A. Springer was still in his minority; he arrived at the age of twenty-one years in 1868, when he entered into the possession of the farm, and has ever since occupied it, under the-terms.expressed in the will..
Horace, it would seem, was, and still is, imbecile in intellect, and has been supported' by his mother. The claim of the widow is for the one half of what has, during this period, been raised upon the farm, etc.
In order that the complainant, Nancy Springer, may have a decree in this case it must appear not only that she is a legatee under the will of Joseph Springer, deceased, but that her legacy, is, by the express provision of the will, or by plain implication, charged upon the lands of William A. Springer, the devisee.
The testator, in the first place, plainly gave to his widow a life estate in the land, and in a subsequent clause devised to William the remainder in fee. These provisions are clear and their effect is undisputed; it is the intermediate clause, out of which the present contention arises.
It is contended on the part of the widow, that if William, *282when he arrived at lawful age,'elected to take the farm under the terms of the will, the estate or title given him in this intermediate clause, being for the life of his mother, merged in the fee, which he held in remainder, that her life,estate was thereby determined, and the title became vested in William absolutely, subject only to the charge .of her “one half of' everything raised on the farm.” ’ And further, that the.terms of the will,, specifically pointing out the land' as'the source of payment, make that payment to the widow by plain implication a charge on' the land. ■ -
- Upon a careful reading o£ this will, we have arrived at a different conclusion. We do not understand that the testator' intended by this.clause to carve from the widow’s life estate,any additional interest in the land for William, or that the life estate should be determined, and the fee take effect, at any time anterior to the -widow’s death ; the 'language of the will is, that William “is to have the-refusal 'of renting the farm,” which plainly implies a recognition of the continuance of the-widow’s title after the provision'shall take effect; and this implication is greatly strengthened by- the fact that he is to have the refusal of renting the farm “Tropa-his mother.”
The testator intended, without doubt, just what he said, that-William should occupy as a tenant under his mother, and that her éstate in the land should continue through life. It is quite improbable, w'e think, that he should have meant that his wife, kfter her son’s majority, would lose her management and control of the farm, or her right to regulate its production.
; Under this clause, as we understand it, no additional beneficial interest in the land passed to William. He acquired under it a merely personal right or privilege, which the widow by her acceptance of the will, in' a certain contingency, at the proper time, was bound to respect.- The acceptance of the devise was an engagement on her part to comply with the-provisions of the will respecting.it; and in the event of her refusal she would, we think, have been liable in an action for. the injury sustained. When William arrived at the age of twenty-one years, he exercised the option given him ; he signified his willingness to take the farm on the terms of the will, and with his mother’s approval entered into the possession, and conducted the operations of the farm. The relation of. landlord and tenant thereafter subsisted between. them — not under the will, perhaps, but by the agreement implied from the conduct of the parties, pursuant to its provisions. All the' remedies incident to, or springing out of that relation, both at £he common law .and by'statute, attached at the instant it existed, as in other cases. In the absence of any agreement, otherwise,' $he tenancy was from year to year only, and, if *283William, from indolence, want of capacity, or other cause, had failed to conduct the work of the farm from year to year in a .reasonably successful manner, upon proper notice she would have had an undpubted right to resume the possession under the statute. It was competent, of course, for the parties, by writing; to provide for a term of years, and for the widow, in a reasonable way; to regulate the manner and'extent of the cultivation, the kind of crops, to provide for the division of the products, and the delivery of her share. She was the landlord and her son the tenant, and. their rights were regulated accordingly. As long as William, in carrying on the affairs of the farm, did his duty in a reasonable and substantial manner, he had a right to-be-retained as a tenant. If improperly excluded .and denied his privilege, he had his remedy, but he had no present interest'd! the land under the will, during the lifetime of his mother.
These, as we understand this will, were the relative rights of the parties to this contest, and in this view of the case this proceeding in the Orphans’ ’Court, as against Wm. A: Springer, cannot be sustained.
It is unnecessary to consider the other questions in the case.
The decree of the Orphans’ Court as to William A. Springer, is therefore reversed, and the proceedings as to him are set aside at the costs of the appellee. _
Sterrett, J., dissents..