no. 390.
Opinion,
Mb. Chief Justice Paxson :This case involves the proper construction of the will of Joseph Eichelberger. The leading thought in that instrument is equality. This is clear from item 10, which declares: “ It is my will that each of my children shall have share and share alike.” To produce this result, he puts a valuation upon the farms and other pieces of real estate which he had devised to his children respectively. Then follows the statement of the amount due his estate by each child. Item 15 of the will declares that “ my daughter Jane, married to John Badabaugh, is indebted to my estate thirty-six hundred dollars;” and item 17, “ Martin Eichelberger is indebted to my estate two hundred and eighty-four dollars and twenty-eight cents.” The indebtedness of the other children need not be stated, as it is not involved in this appeal. The auditor held that neither Jane nor Martin was chargeable in the distribution with the sum mentioned by the testator. This ruling was affirmed by the learned court below upon exceptions.
The learned auditor has found that there is no evidence of *169either debt, except the statement in the will; that Jane Radabaugh did not owe at any time the $3,600, or any portion thereof. He does lind. that at one time the testator aided Jane's husband, John Radabaugh, to buy a farm, and in doing so advanced him a considerable amount of money, but that this matter had been settled by a conveyance of the farm from John to the testator. This, however, occurred several years prior to the making of the will, and can have no bearing upon the present controversy.
The learned auditor and court below evidently treated the case as if it had been a suit by the estate against the legatees to recover the indebtedness named in the will. The auditor accordingly finds as conclusions of law that (a) the debts mentioned in the will are barred by the statute of limitations; and (5) to establish the debts referred to the declarations of the will are not sufficient; even if prima facie, they could be rebutted by counter evidence. Zimmerman v. Zimmerman, 47 Pa. 378, was cited in support of the latter proposition. It hardly needed authority to show that a mere declaration in a will that A. B. was indebted to the testator would not of itself sustain a suit against A. B., to recover the amount of such alleged debt. The will would not even be competent evidence for such purpose. A debt cannot be created by the mere declarations of a testator. In the case in hand, there was no attempt to enforce payment of these debts against the testator’s children by suit. Hence, there was no room to apply the statute of limitations. For what purpose, then, were they specified in the will ? The appellees contend it was done for the information of the executors, and to enable them to proceed to collect the respective amounts from the children so charged. But the testator does not appear to have left behind him any evidence of such debts upon which his executors could have based a suit at law; and the declaration in the will, as before observed, could not have sustained an action.
The manifest object of the testator was to enable his executors to carry out the leading thought of his will, and distribute his estate to his children share and share alike. He first directs an equal distribution, and then designates the amount each child has received in his or her lifetime. For the purposes of this distribution, it matters little whether we call the *170sums advancements or debts. They may have been debts originally, and turned into advancements by the testator. This seems probable from the omission of any reference to interest, and from the fact that he refers to them as debts due to his estate instead of to himself. The two words are sometimes used interchangeably: Wright’s App., 93 Pa. 83. The law is well settled that, when a person accepts a legacy, it is an election to stand by the provisions of the will: Fulton v. Moore, 25 Pa. 468; Pennsylvania Co. v. Stokes, 61 Pa. 136. I do not understand this principle to be disputed excepting in its application to the facts of the present case. While it was conceded that a testator can convert a debt however deceptive the possible proof of it, however it is barred by time, into a present advancement, and so make it deductible from the portions of his legatees, yet it is argued that this can only be done when his will expresses this purpose cleariy, as in Green v. Howell, 6 W. & S. 203; Grim’s App., 105 Pa. 375. Our attention was also called to the fact that there is no direction in the will that these debts shall be deducted from the shares of the children against whom they are charged. It is true there is no such direction in terms. There is, however, a necessary implication that they shall be deducted; an implication so strong as to leave no reasonable doubt of the testator’s intention, and which, for the purposes of this case, must be regarded as the equivalent of an express direction. When a testator says through his will to his executors, “ You shall divide my estate equally between my children, share and share alike,” and then specifies the amount each has received in his lifetime, what rational conclusion are we to draw but that the amounts so received shall be deducted from their shares? Under such circumstances, the direction to divide equally necessarily involves such deduction.
The fact of the indebtedness of each child, and the amount thereof, was a matter within the personal knowledge of the testator, and he had a right to say that the indebtedness of his children, as he stated it in his will, should be deducted from their shares. Even if a mistake had been made, I am unable to see how it could be corrected upon distribution without making a new will for the testator. If the indebtedness of Mrs. Radabaugh was for money received by her husband, the *171testator had a right to charge it against her in his will. A legatee is bnt a volunteer, at best, and must take the bounty of the testator upon the terms in which it is bestowed. The assignments of error are sustained.
The decree is reversed at the costs of the appellees ; and it is ordered that the record be remitted with instructions to make distribution in accordance with this opinion.
no. 401.
Opinion,
Mr. Chiee Justice Paxson :This contention arises upon the following clause of the will of Jacob Eichelberger:
“ I give and bequeath to my son, Martin Eichelberger, a sum of money which shall be of equal value with the shares bequeathed to my other sons. The said sum of money to be placed on interest by my executors, and the interest thereof to be paid annually to my said son, Martin Eichelberger, during his natural life. In case the said Martin Eichelberger should die and leave no legitimate heirs of his own body, then the sum bequeathed to him shall revert to my other heirs.”
The auditor and the court below held that under this clause Martin took but a life-estate in the sum of money mentioned, and awarded the corpus of the same to the trustees named in the will. From this decree Martin appealed.
The first clause of this bequest, had it stood alone, would have given the appellant the money absolutely. Is this controlled by what immediately follows? We regard the plain intent of the testator to have been that Martin should take the interest only of this fund during his life; that at his death it should go to his children, if he had any, and on default of children, then over to the other children of the testator. He intended to sever the product from the fund producing it, and give only the former to Martin. To carry this object into effect, he directs his executor to invest the fund, and pay over the interest only to Martin during his life. Is there any inflexible rule of law which will defeat the plainly expressed purpose of the testator? Where it is the manifest intent of a testator to sever the product from its source, a bequest of the income of an estate will not carry an absolute estate in the prin*172cipal: Bentley v. Kauffman, 86 Pa. 99. The trust is an active one, intended to preserve the contingent remainders: Kay v. Scates, 37 Pa. 31; Sheets’ Est., 52 Pa. 257; Eachus’s App., 91 Pa. 105. Moreover a limitation over on the death of the first taker, or a direction that the interest of money shall be paid annually to him for life, is held to be evidence that he has but a life-interest: Myers’s App., 49 Pa. 111; Sheets’ Estate, supra. There is a line of cases which hold that the rules of construction admit of the use of the words “ heirs of the body ” or “ issue ” in the restricted sense of “ children,” or in the enlarged sense of “ heirs of the body,” in order to carry out the intent of the testator. In such instances, the intent is the key to ascertain the meaning of the words: Guthrie’s App., 37 Pa. 9; Haldeman v. Haldeman, 40 Pa. 29; Taylor v. Taylor, 63 Pa. 481; Koppenhaffer’s App., 87 Pa. 196. And in Peck’s App., 78 Pa. 432, it was held that “all mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful.” In the case in hand the clearly expressed intent of the testator was to give to Martin onty the income of this fund for life, with remainder over, as before stated, and to carry it into effect he created an active trust. We need not speculate as to his object in doing this; he has not stated it, and we have no concern with his motive. It is enough for us to know that such intent was lawful, and, not being in conflict with any law or rule of public policy, must be sustained.
The decree is affirmed and the appeal dismissed, at the costs of the appellant.