George M. Dierolf, executor of the estate of Frances S. Carmany, appellant in appeal No. 178, and George M. Dierolf and Emma M. Schenck, residuary legatees under her will, appellants in appeal No. 179, filed this petition in the Orphans' Court for partition of the real estate of Jacob S. Carmany, deceased, asserting rights in and to the land by reason of his alleged intestacy as to the principal of his estate. Mary O. Forney, appellee, daughter of Jacob S. Carmany filed an answer denying appellants' interests. These appeals are from the decree of the court below dismissing the petition.
Jacob S. Carmany died testate February 1, 1931, survived by Frances E. Carmany, widow, and Mary O. Forney, a daughter by a prior marriage. His will provided, inter alia:
"Item. All the rest, residue and remainder of my estate I direct to be held in trust by my hereinafter names Executors, the income therefrom to be paid, as follows:
After paying taxes and all other expenses of administration and Seven Hundred and Fifty Dollars ($750.00) on the first days of October and April of each year, to my said wife, which sum, I hereby give devise and bequeath to her, the balance of the income shall be paid by my hereinafter named Executors to my daughter, Mary O. Forney, her heirs and assigns.
Item. If in the opinion of my Executors, it should be to the best advantage of my estate to sell any of the real estate other than that occupied by my wife, then I *Page 298 order and direct that they shall sell the same and make and execute a good deed for any of the said properties. I further authorize and empower my Executors, at the request of my said wife, to sell any real estate that she has the right to occupy under this my will and to make good and sufficient deeds for the same.
Item. I further bequeath to my said wife the sum of Five Hundred Dollars ($500.00) in personal property, to be appraised to her immediately at my death. This bequest being in lieu of the exemption allowed her by law."
Provision was also made whereby the widow had, for the term of her life or widowhood, the use and occupancy of testator's dwelling house. The executors had the right and power, upon the widow's request, to sell said real estate and pay the income therefrom to her or to repurchase a smaller home to be occupied by her during widowhood. In the latter event, the remaining proceeds of the sale were to be held in trust for the widow who was to receive the income semiannually.
Frances E. Carmany elected to take under the will. She died testate on April 26, 1945 and by her will directed a conversion of all real estate of which she died seised. After making several minor bequests, she gave the entire residue and remainder of her estate to her brothers and sisters living at the time of her decease, appellants in appeal No. 179.
Appellants contend that (1) the trust terminated upon the death of the widow Frances E. Carmany, and (2) there being no disposition of principal his estate passed under the intestate laws as of the date of his death vesting a one-half undivided interest in the whole in the widow and daughter. Appellee contends that the gift of income to her, "her heirs and assigns", being absolute and unlimited with regard to time and amount, constituted a gift of the principal. *Page 299
One who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion thereof:Provident Trust Co. of Philadelphia v. Scott, 335 Pa. 231,6 A.2d 814; Duffy's Estate, 313 Pa. 101, 169 A. 142; Appeal ofFerry, 102 Pa. 207; Miller's Appeal, 113 Pa. 459, 6 A. 715. If possible to do so, a will must be construed to avoid an intestacy; Rapson's Estate, 318 Pa. 587, 179 A. 436; Boland v.Miller, 100 Pa. 47. A construction is favored which will give effect to every word, rather than one which will render some words idle and nugatory: Horn's Estate, 351 Pa. 131,40 A.2d 471; Dormer's Estate, 348 Pa. 356, 35 A.2d 299. An estate favorable in quantum and enjoyment to a natural object of a testator's bounty is to be presumed rather than one which restrains free use, alienation and enjoyment: Crozer's Estate,336 Pa. 266, 9 A.2d 535.
Testator's intention and the clear and primary purpose for which the trust was created, gathered from the language of the will and the surrounding circumstances, was to assure his widow a home for the balance of her widowhood and an annual income of $1500.00. During the continuation of the trust, whatever remained of the income was to be paid to the daughter. Upon death or remarriage of the widow, the entire net income was given "to my daughter, Mary O. Forney, her heirs and assigns". The words of the will cannot be ignored. Giving effect to them renders inescapable the conclusion that his intention was to create a trust during the lifetime of the widow or until her remarriage and to give his entire residuary estate to his daughter. Had testator intended to create an active trust to be measured by the life of the daughter, he would have evidenced such intention by the use of the words "for life", rather than by words of inheritance. That he was cognizant of the method whereby the same could have been done is shown by his limitation of the life estate to the widow. The gift of income *Page 300 from his residuary estate to the daughter "her heirs and assigns" is an irrefutable manifestation of his intention to give an estate of inheritance and not to die intestate.
The gift to Mary O. Forney was not only accompanied by words of inheritance but also unlimited and unrestricted as regards time, amount and conditions. An absolute gift of income without limitation of time or amount is a bequest of the corpus of the fund from which said income is derived: Thompson Trust, 348 Pa. 228, 35 A.2d 261; Emmerich's Estate, 347 Pa. 307, 32 A.2d 400;Bosworth's Estate, 337 Pa. 265, 11 A.2d 140; Gibbons'Estate, 317 Pa. 465, 177 A. 50; McKinstry's Estate, 296 Pa. 185,145 A. 806.
Application of this rule cannot be defeated or circumvented by reliance upon the power of sale given to the executors. The obvious purpose of the power was to secure to the executors, in their capacity as trustees, control of the corpus and assure sufficient income to carry out the terms of the trust. Termination of the trust upon death of the widow ended the power. Nor do the duties of paying the "balance of the income" after payment of taxes and administration expenses prevent application of the rule effecting a gift of the principal. The active duties referred to in Kline's Appeal, 117 Pa. 139,11 A. 866, must be something more than the mere collection of income, deduction of administration expenses and payment of the remainder to the beneficiary. In every instance where income is to be given to a named beneficiary, there must be implied, if not expressed, the power of the executor to collect the same, deduct therefrom his commission and other expenses of administration, and pay the balance to said beneficiary. Cf.Bosworth's Estate, supra; McKinstry's Estate, supra. The exception referred to in Kline's Appeal, supra, is, therefore, inapplicable. *Page 301
Mary O. Forney, appellee, is the owner of the entire estate of Jacob S. Carmany. The court below properly dismissed the petition for partition.
Decree affirmed; costs to be paid by the respective appellants.