Bailey's Estate
| Decision Date | 18 July 1916 |
| Docket Number | 73-1916 |
| Citation | 64 Pa.Super. 17 |
| Parties | Bailey's Estate |
| Court | Pennsylvania Superior Court |
Argued April 18, 1916 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]
Appeal by Francis Rea Bailey, from decree of O. C. Washington Co.-1914, No. 33, dismissing exceptions to auditor's report in case of Mary Elizabeth Bailey, deceased.
Exceptions to report of Harry D. Hamilton, Esq., auditor.
McIlvaine, P. J., filed the following opinion:
Mary Elizabeth Bailey died on the 8th day of July, 1911, leaving to survive her an only child, Francis Rea Bailey, who is married, and at the time of her death had two children living, to wit, Olive Elizabeth, born on April 16, 1903, and Florence Eveline, born on April 26, 1911; he has had born to him and his wife one child since the death of his mother, Mary Elizabeth Bailey, to wit, John Marshall, born on April 22, 1914. Francis Rea Bailey is still living and is the exceptant in this proceeding. Olive Elizabeth Bailey, Florence Eveline Bailey and John Marshall Bailey have for their guardian Fred C. Houston, Esq.
Mary Elizabeth Bailey on the 7th day of July, 1911, made her last will and testament which was duly probated in the register's office of this county and letters testamentary issued to the accountant in this proceeding, Thomas H. Huber.
The second paragraph in the will of Mary Elizabeth Bailey provides as follows:
The executor to the above number and term settled his second account, to which Francis Rea Bailey, among others, filed the following exceptions:
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Besides the personal property, consisting of bonds, mortgages, notes, etc., Mary Elizabeth Bailey died seized of a tract of land containing 132 acres in Smith Township in this county.
The question for decision is whether or not Francis Rea Bailey, under the will of his mother, is the owner in fee simple of the real estate of which she died seized and is entitled to take all the money now in the hands of the executor, as shown by his account, absolutely, or does he only have the income from the real estate during his life and the interest derived from the bonds, mortgages and notes which came into the possession of the executor?
An auditor was appointed to pass upon the exceptions filed to the account of the executor, and, having found adversely to the exceptant, exceptions to his report have been filed in this court raising the same question which was raised before the auditor. The basis of the contention of the exceptant is the rule in Shelley's Case and its effect upon the construction of the will of Mary Elizabeth Bailey.
It is always a precedent question in any case to which it is supposed the rule in Shelley's Case is applicable, whether the limitation of the remainder is made to the heirs in fee or in tail, as such. And in solving this question the rule itself renders no assistance. The first thing for the court to do is to determine the intention of the grantor or testator. That is, to find from the language of the deed or will whether the remaindermen are to take as heirs of the grantee or devisees of the particular freehold, or are they to become the root of a new succession. If the clear intention of the testator is to make the remaindermen the root of a new succession, then the rule does not apply. Otherwise it does apply, though it may defeat the manifest intention that the first taker should have but an estate for life. It is very carefully to be noted, that in searching for the intention of the donor or testator, the inquiry is not whether the remaindermen are the persons who would have been heirs had the fee been limited directly to the ancestor. The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor or testator intended they should take. The difficulty in most of these will controversies is in determining whether the intention of the testator was that the remaindermen should take as heirs of the first taker or originally as the stock of a new inheritance.
In the case at bar the question therefore is, do the children of Francis Rea Bailey (of whom Mr. Houston is guardian) as remaindermen take as heirs of their father, or was it the intention of their grandmother, the testatrix, that they should take from her and thus become the root of a new succession. From a careful reading of the language used by the testatrix in her will we are of opinion that she intended to limit the interest of her son to the income of her estate during his natural life and that at his death her estate should go to his children as her devisees or legatees, and that they were not to take from their father. If this was her intention, then the rule in Shelley's Case has no application. It will be noticed first in construing this will, that she did not give her farm and her bonds, mortgages and notes to her son during his natural life. What she gave to him was the income of her real estate and her bonds mortgages and notes. More than that, during his life she put her real estate and her bonds, mortgages and notes -- all her property -- in charge of Thomas H. Huber, her executor, with power at his discretion at any time to sell any of the bonds, mortgages or notes, if the safety of the investments required it. The will also directed that at the death of Francis Rea Bailey all the property, real estate, bonds, mortgages and notes, should be turned into money and that the money should be equally divided between the children of the said Francis Rea Bailey, or, if they were dead, then among their heirs. With these provisions in the will, it is clear to our mind that the testatrix intended to limit the interest of her son in her estate to the income which the executor in the active management of that estate should derive during his lifetime, and that she intended...
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