Reimer's Estate

Opinion by

Mr. Justice Green,

It cannot be doubted that the testator intended to dispose of the whole of his estate. The first clause of his will is as follows, “ I order that all my just debts and funeral expenses, also charges for probating this my will be first fully paid and satisfied and after the payment of the same I direct that the whole of my estate remaining shall be divided as follows.” The testator then makes bequests of personalty, and thereafter devises of real estate, preceded by these words: “ After which I direct my real estate to be divided as follows.” Then follow six devises of specific real estate, which, it is asserted by the appellants, and is not denied by the appellees, comprise the whole of the real estate of the testator. It is manifest, therefore, that the testator was perfectly conscious of the distinction between personal and real estate as subjects of testamentary disposition, and that he fully intended to dispose, by his will in question, both of all his personal estate and all his real estate.

The present contention arises upon the meaning of one of the clauses disposing of his personal- estate. It is in the following words: “ First. I give and bequeath to my brother Andrew Reimer any and all of my household goods, books, clothing, furniture, etc., that he may desire. The balance of the personal effects to be divided among the children of my sister, Mary Ewing.” It is too plain for argument that this was an absolute bequest to Andrew of all the chattels named, because he was at liberty to take all of them if he so desired. If he so desired and took them all, there would be none left for the children of Mary Ewing to take, and the bequest to them would be nugatory for want of a subject-matter upon which to operate, if the contention of the appellees is correct. The controversy is upon the distribution of a considerable balance of personal estate which consisted of money and securities. The learned court below decided, and the appellees contend, that the children of Mary Ewing could only take the “ balance,” if there was any, of the class of chattels given to Andrew, and could take no part of the money and securities. If this is correct, it follows that if Andrew took all the chattels of the class named Mary’s children would get no part of the personal estate under the will. And it follows, also, that in order to produce this result it must be held that the testator died intestate as to all of his personal estate, other than the chattels mentioned in the bequest to Andrew. It is also alleged without contradiction that the testator’s personal estate, according to the inventory, amounted to 123,796.54, of which the household goods, books, clothing and furniture were appraised at 1258.50, all of which went to Andrew Eeimer under the first clause of the will. The remainder consisted of cash and securities, and as to this the court below held that the testator died intestate, and made distribution of the whole of the balance to the next of kin. The fund was claimed by the children of Mary Ewing under the bequest to them of “ the balance of the personal effects,” in the first clause of the will.

It is a perfectly well established rule in the construction of wills in Pennsylvania, that no testator is presumed to die intestate as to any part of his property, if the words of the will will carry the whole. In the case of the Appeal of the Boards of Missions, 91 Pa. 507, Mr. Justice Gordon, after reviewing the provisions of the will in question, said: “ From all this it would appear that the testator did not intend to die intestate as to any portion of his property, real or personal, and this intention must govern, unless there is something in the devise itself which forces us to a different conclusion; for it is a rule long and well settled that a will must be so construed as to avoid a partial intestacy unless the contrary be unavoidable.” Applying this doctrine to the facts of that case, this court held that the residuary clause of that will, which directed the executors to sell all the rest and residue of his estate and pay the proceeds to a certain legatee, included money which had accrued as dividends on bank stocks and was not a subject of sale. In the case of Hofius v. Hofius, 92 Pa. 305, it was said by Mr. Justice Trunkey, delivering the opinion of the court: “ The learned judge of the common pleas truly said, ‘ It should not be and never is presumed that a testator intended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will.’ And he might have added, ‘ no presumption of an intent to die intestate as to any part of the estate, is to be made when the words of the testator will carry the whole,’ Raudenbach’s Appeal, 6 Nor. 51.” It was held that a residuary clause which directed that the residue of the estate should be put out at interest by the executors with ample security, and the interest thereof should be paid to the widow during her life, and should be equally divided after her death between two of the testator’s children, embraced a tract of forty acres of land which was not otherwise disposed of.

In Jacobs’ Estate, 140 Pa. 268, it was held that a residuary clause in the following words, “ The remainder and residue of my money I give and bequeath to the hospital of the Protestant Episcopal Church in Philadelphia,” carried certain real estate with it to the residuary legatee, not otherwise disposed of. The decision was put upon the ground that the testatrix did not intend to die intestate, and that she did not intend her heirs to have any part of her estate.

In Sweitzer’s Estate, 142 Pa. 541, we held that a bequest in the following words, “ The rest, or nine tenths of my available stocks I bequeath to my sister Charlotte during her lifetime, after her death to be divided equally between the children of my brother,” carried with it cash, notes, shares of corporate stocks, United States four per cent bonds and corporate bonds or loans of a navigation company. This result was reached by the application of the same rule we are considering, and the various securities above mentioned, not having been otherwise disposed of, and the testatrix having said, “ I believe it my duty to dispose of my whole estate, ... I therefore make this my last will,” etc., we decided that the clause of the will above mentioned should be construed as a residuary clause in favor of the legatee named therein.

These illustrations of the rule might be infinitely multiplied, but the foregoing are sufficient, and it is only necessary to examine briefly the language of the will to make the application.

The decision of the court below turned chiefly upon the meaning of the word “ effects,” in the first clause. The learned judge held that the whole right of the children of Mary Ewing was to take the remainder of the specific chattels which Andrew Reimer did not take. Apart from the consideration that this ruling would produce an unintended intestacy as to the great bulk of the estate of the testator, it is clear from the authorities that the word “ effects ” has a much larger signification than was accorded to it. Thus in 2 Williams on Executors, p. 1015, it is thus stated: “ The word ‘ goods ’ is nomen generalissimum and when construed in the abstract will comprehend all the personal estate of the testator, as stock, bonds, notes, money, plate, furniture, etc. And a bequest of all the testator’s ‘ chattels ’ will have the same effect as a bequest of all his ‘goods and chattels.’ So the word ‘effects,’standing alone, will pass the whole of the testator’s residuary estate,” citing a number of cases. Of course this meaning may be restricted by residuary words, but in their absence they have the enlarged significance stated.

In Hogan v. Jackson, 1 Cowper, 299, Lord Mansfield said': “I take ‘effects’ to be synonymous to ‘worldly substance,’ which means whatever can be turned to value, and therefore that real and personal effects mean all a man’s property.” To this reference may be added Campbell v. Prescott, 15 Ves. Jr. 500a, in which it was held that the word “ effects” in a will was equivalent to “ property ” or “ worldly substance.” In our own case of Dowdel v. Hamm, 2 Watts, 61, Rogers, J., said: “ The term ‘ goods and chattels ’ includes choses in action as well as those in possession : 12 Co. 1; 1 Atk. 182. The term ‘ chattels ’ is more comprehensive than ‘ goods,’ and will include animate as well as inanimate property ; and so of the term ‘ effects ; ’ for the term ‘ goods ’ will not embrace fixtures, but the term ‘ effects ’ may. 7 Taunt. 188 ; 4 J. B. Moore, 78 ; 4 B. & A. 206. The term ‘ effects, both real and personal,’ in a will passes freehold estate, and all chattels real and personal: 2 Chitty’s Black, in the note. Toller, in his Law of Executors, uses the term ‘ effects ’ as including choses in action. . . . And we come to the same result if we adopt the popular signification of the term. It means such funds in the hands of the executor as may be made effective or available for payment of debts or legacies.”

Recurring to the language of the will in the present case we fail to discover any words restrictive of the general meaning of the word “ effects.” The bequest is “ The balance of the personal effects to be divided among the children of my sister Mary Ewing.” The court below said that this meant the balance of the specific chattels bequeathed to Andrew Reimer which he did not desire. By what authority is such an inference drawn? The will does not say so. It gives Andrew the right to take all of those specific articles, and, assuming that Andrew would take all that he was entitled to take, which is but ordinary human nature, there would be no balance for Mary’s children to take. If the testator had meant to restrict their right to only that kind of goods, or chattels or effects, he would have so provided that there should be such a balance. But on the contrary he so provides that the children can get none of those effects except what Andrew chooses to give them, and then their title would be not under the will, but under-Andrew. Such a construction leads to the absurd result that the will has no meaning at all in that view, because Andrew could give them a portion of the effects with or without the will.

But, independently of this consideration, the plain meaning of the words, just as they stand, does not invite or permit any restricted meaning to the bequest. The first sentence of the first clause simply gives to Andrew certain specific chattels and then stops, thus: “I give and bequeath to my brother, Andrew Reimer, any and all of my household goods, books, clothing, furniture, etc., that he may desire.” This is a simple gift of all the articles mentioned. If Andrew does not desire some of them, those not taken be'come a part of the residuary personal estate of the testator and will pass by any residuary bequest. Then in immediate connection with the first sentence of the clause the testator provides thus: “ The balance of the personal effects to be divided among the children of my sister, Mary Ewing.” Whose “personal effects?” Obviously the testator’s. What are his personal effects ? Necessarily everything embraced within the description “ personal property.” This is the language of all the authorities in all cases where the natural meaning of the word “ effects ” is not restricted by the context, and here there is no such restriction. “ The balance of the personal effects ” of the testator means all of his personal effects, except such particular personal effects of a designated class as may have been taken by Andrew under the first sentence of the first clause of the will. To us this meaning seems perfectly simple. It is in entire accord with the authorities, it effectuates the plain intent of the testator, and it prevents him from dying intestate as to a large part of his estate the whole of which he has expressly declared his intention to dispose of. We are clearly of opinion that the second sentence of the first clause of the will is residuary in its character and was intended as such by the testator, and that the fund for distribution should be given to the children of Mary Ewing. There is nothing in the provision for the monument which in the least degree conflicts with this view. Of course it was to be paid for out of any moneys in the hands of the executors.

There is not the slightest merit in the third assignment relating to the payment of attorney’s fees for defending the will. It has been decided over and over again that the costs, including counsel fees, for the trial of issues devisavit vel non cannot be charged to the estate unless it is benefited thereby: Koppenhafer v. Isaacs, 7 Watts, 170; Mumper’s Appeal, 3 W. & S. 441; Scott’s Estate, 9 W. & S. 98 ; Yerkes’s Appeal, 99 Pa. 401.

.But if this were not so we cannot discover that any such question was raised in the court below. The very brief appendix that is published does not show that any such question was raised. The opinion of the court makes no allusion to it, and there is no credit claimed by the accountant for any such payment.

The decree of the orphans’ court is reversed at the cost of the appellees, and the record is remitted with instructions to make distribution of the fund in accordance with this opinion.