Appeal of Kline

• Decision Date: 03 October 1887
• Docket Number: 270
• Citation: 11 A. 866,117 Pa. 139
• Parties: APPEAL OF DAVID A. KLINE, EXECUTOR
• Court: Pennsylvania Supreme Court

11 A. 866

117 Pa. 139

APPEAL OF DAVID A. KLINE, EXECUTOR

No. 270

Supreme Court of Pennsylvania

October 3, 1887

Argued May 5, 1887

FROM THE COURT OF COMMON PLEAS OF UNION COUNTY.

No. 270 January Term 1887, Sup. Ct.; court below, No. 1 September Term 1882, C.P. in equity.

In the court below a bill in equity was filed on June 4, 1882, by Julia A. Hagenbuch, widow of Peter Hagenbuch, deceased against David A. Kline, Thomas W. and Samuel B. Hagenbuch executors of the will of said deceased, for an account. Mr Kline only was served.

Peter Hagenbuch died on February 17, 1875, leaving a will which was duly proven, dated January 11, 1875, the portions thereof relating to the provisions made for his widow being as follows: --

1. Out of my personal property I give and bequeath to my wife, Julia A., one horse and one buggy, to be selected by her from such as I may have at my decease; the remainder of the personal property, except so much as should be taken by my wife under the $300 widow's exemption law, shall be converted into money and be applied as far as the same may go towards the payment of my just debts.

2. I direct that my real estate shall not be sold until after the decease of my wife, unless it may become necessary in the judgment of my executors to sell a portion thereof for the purpose of paying debts or legacies.

3. I hereby give, devise and bequeath unto my wife, Julia A., the one half of all the net income arising from my real estate during the full term of her natural life, and where real estate is converted into money, so that income ceases to be received from it as land, then one half of the interest arising from the proceeds of such lands is to be paid to my wife annually during the term of her natural life. I also direct that my said wife shall have the privilege of residing in my mansion house now occupied by me if she so desires, free of rent.

4. If my executors can arrange to pay the balance of my debts and the legacies herein bequeathed by applying the income of my real estate thereto, then I wish them to do so, but if this cannot be done, or in their judgment is not advisable, then I authorize and empower them to sell and convey by deed or deeds, by them executed, such of my real estate as they may deem it best to sell for said purposes.

6. I hereby give and bequeath to my wife, Julia A., the sum of four thousand dollars in cash, to be paid to her by my executors three years after my decease, without interest.

12. If after the payment of debts and legacies and the receipt by my wife of her portion of the income arising from real estate, funds should accumulate in the hands of my executors, then I direct that the said fund shall be divided by my said executors once in every two years among the following heirs, namely: Aaron Hagenbuch one share, Harry Hagenbuch one share, and the heirs of Chas. Achenbach one share.

15. I deem it right to bequeath to my wife, Julia A., the sum of four thousand dollars as hereinbefore given to her, because I received from her a considerable sum of money years ago, and this bequest is made in satisfaction thereof. --

The bill filed by the plaintiff set out a full copy of said will, and averred that the defendants were appointed and were duly qualified as executors thereof, the said David A. Kline being the acting executor and accountant; that the executors had received large sums of money belonging to the plaintiff which they had refused to pay over to her; that the estate of the decedent had consisted of a large amount of real estate, divided into several parcels, and of some personal estate; that it became necessary to sell portions of the real estate for the payment of debts; that the interest of the plaintiff was of such a character that it could not be ascertained and fixed definitely by a suit at law, and praying for an account. The answer admitted the provisions of the will as averred; the sale of parcels of the real estate and the necessity therefor; denied that the plaintiff was entitled to further payments than she had already received, and claimed that the Orphans' Court had sole jurisdiction over the respondent as executor, etc., and over any fund which had come or might thereafter come into his hands by virtue of his settlement of said estate, and that the Court of Common Pleas had no jurisdiction in the premises.

Issue being joined the cause was referred to Mr. Franklin Bound, as master, before whom the facts appeared: That at the time of the decedent's death, in addition to about $3,000 of personal property, he was possessed of eight parcels of real estate, all of which, except the mansion farm of 153 acres, one half of the income from which had been received by the plaintiff, had been sold by the executors; from which sales $38,976.48 had been received, out of which receipts $30,348.29 had been applied to the payment of debts and the legacies bequeathed in the will, and that accounts had been settled in the Orphans' Court by the defendant as the executor, and he had in his hands at the date of the hearing before the master a balance for distribution of $1,747.79.

As conclusions of law the master found: That, upon the decided cases holding that by a devise of the rents, profits and income of land, the land itself passes: Anderson v. Greble, 1 Ash. 136; Carlyle v. Cannon, 3 R. 489; Miller v. Casselberry, 47 Pa. 376; McKeehan v. Wilson, 53 Pa. 74; Roberts's App., 59 Pa. 70; Parker's App., 61 Pa. 478; Drusadow v. Wilde, 63 Pa. 170; France's Est., 75 Pa. 220; Hilsee's Est., 83 Pa. 312; and the devise to the widow being in lieu of dower: Reed v. Reed, 9 W. 263; Gheen's Exrs. v. Osborne, 17 S. & R. 173; Thomas v. Simpson, 3 Pa. 70; Walker v. Dunshee, 38 Pa. 430; Bard's Est., 58 Pa. 393; Earp's Will, 1 Pars. 453, the interest of the plaintiff, the widow of the testator, was a life estate in the one half of his real estate, and as such, under the terms of the will she must be regarded as a devisee in lieu of dower as to her rights to the one half of the income of the real estate, and in the relation of a purchaser her equities were superior to those of all others. Further, that as there was no explicit and peremptory direction to sell any part of the real estate, and without such direction there was no conversion: Jones v. Caldwell, 97 Pa. 42; Lindley's App., 13 W.N. 65; Peterson's App., 88 Pa. 397; Anewalt's App., 42 Pa. 416; Hunt & Lehman's App., 105 Pa. 128; the interest of the widow in the realty as a devisee for value was unaffected by the sale of any portion of it, the fund produced by the sale still partaking of the nature of the realty; and that the collateral heirs who were mere volunteers could have nothing until the creditors, legatees, and the widow had been paid. Also, that the plaintiff was not estopped or barred by the proceedings had in the Orphans' Court by the executor, from coming in upon the residuum of the estate of her husband for the purpose of obtaining her rights under the will; and that, under the authority of Schreyer's Est., 7 Phila. 477; 2 Story Eq. J. 1071; McNickel v. Henry, 8 Phila. 88; Willard's App., 65 Pa. 265; Muncy Creek R. Co. v. Hill, 84 Pa. 459; Paul v. Paul, 36 Pa. 270; Vandyke's App., 60 Pa. 481, the master was of opinion that the Orphans' Court did not have jurisdiction to make a decree declaring the rights of the widow under the will, and that she had adopted the proper course of proceeding in filing her bill in equity.

The master then stated an account between the widow and the executors, crediting her with what she was entitled to under the will and charging her with what she had received, leaving a balance due her of $8,785.21, for the payment of which he recommended a decree.

To this report various exceptions were filed by the defendant, and after argument the court, J. C. BUCHER, P.J., filed the following opinion:

The testator gives as follows by his last will:

1. To his wife a legacy of $4,000, payable three years after his decease; and adds that he gives her this because he received from her a considerable sum of money many years ago, and this bequest is made in satisfaction thereof. So this we treat as a debt due to her.

2. To his wife half of all the net income arising from his real estate, during the full term of her natural life, and provides that "when real estate is converted into money so that income ceases to be received from it as land, the one half of the interest arising from the proceeds of land is to be paid to my wife annually, during the term of her natural life." He does not say as he might have said, that she is to receive one half of the interest on what remains after paying debts and legacies, but half of the proceeds, that is, what the sale of the real estate produces, she is to get the interest on one half. As a matter of mere interpretation, independently of the principles of law hereinafter invoked, and so ably cited and applied by the learned master, she would take the interest in the proceeds of real estate sold, not exceeding the one half, and if less than that remains after paying debts, etc., then in whatever sum does remain. All the other legatees are postponed, and the real loss falls on the residuary legatees, where the law casts it. But, when we invoke the well settled rule that a widow's allowance, accepted in lieu of dower, does not abate in any class of legacies, as shown by Reed v. Reed, 9 W. 262; Gheen's Exr. v. Osborne, 17 S. & R. 173; Thomas v. Simpson, 3 Pa. 70; Walker v. Dunshee, 38 Pa. 430; Bard's Estate, 58 Pa. 393; Duncan v. Alt, 3 P. & W. 382; and it is there held, "that every bequest to a wife is conditional by force of the statute, which declares that every legacy to her shall be in lieu of dower, if the contrary be not expressed, and thus standing, as...