In re Shaffer's Estate
| Decision Date | 17 July 1918 |
| Docket Number | 97 |
| Citation | 104 A. 853,262 Pa. 15 |
| Parties | Shaffer's Estate |
| Court | Pennsylvania Supreme Court |
Argued June 4, 1918
Appeal, No. 97, Jan. T., 1918, by Sarah Alice Hartman and Gideon T. Biehl, Executors and Testamentary Trustees under the last will and testament of John W. Shaffer, deceased from decree of O.C. Union Co., Jan. T., 1918, No. 2, refusing citation in Estate of John W. Shaffer, deceased. Reversed.
Petition for citation to show cause why respondent should not be required to accept a devise and assume the dower, debt and interest, or forfeit all claims to the land in question. Before JOHNSON, P.J.
The facts appear by the opinion of the Supreme Court.
The lower court refused the petition. Sarah Alice Hartman and Gideon T. Biehl, Executors and Testamentary Trustees appealed.
Error assigned, among others, was the decree of the court.
The decree of the court below is reversed, the petition is reinstated, and it is adjudged and decreed that the devise by John W. Shaffer, deceased, of his real estate, known as the Stoltzfus farm, to his half brother Charles Grant Shaffer, is expressly subject to the nine mortgages of $400 each, now thereon, but the same is not payable by him or out of his interest in said property until the death of Angeline Shaffer, widow of said John W. Shaffer, unless she elects to surrender her life interest therein; that the said Charles Grant Shaffer may purchase or cause to be purchased the said nine mortgages, obtain assignments thereof, and hold the same against said property, with all the rights and remedies incident thereto to be enforced, if the widow does not surrender her life interest in said property, and if the accruing interest on said mortgages is not paid during the lifetime of said widow; and upon her surrender of all interest in said property, or upon her decease, whichever shall happen first, said mortgages shall be satisfied of record. The costs in the court below and in this court shall be borne equally by appellants and appellee.
Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellants. -- The widow's dower is a statutory charge on the land devised: Act March 25, 1832, Section 43, P.L. 203; Shelly v. Shelly, 8 W. & S. 153; Dech v. Gluck, 47 Pa. 403; DeHaven v. Bartholomew, 57 Pa. 126; Karstein v. Bauer, 4 Penny. 366; Good v. Good, 7 Watts 195; Medlar v. Medlar, 2 P. & W. 355; Smith v. Danielson, 45 Pa.Super. 125.
He who takes under a will must take according to the will: Stump v. Findlay, 2 Rawle 168; Cox v. Rogers, 77 Pa. 160; Tomkins v. Merriman, 155 Pa. 440; Eichelberger's Est., 135 Pa. 160.
The testator's intent governs in the construction of his will: Carson's Est., 227 Pa. 543.
The words "subject to the widow's dower" are not descriptive merely but make the dower debt a charge upon the land, to be paid by the devisee: Keating v. Peddrick, 52 Pa.Super. 128; Green v. Rick, 121 Pa. 130.
A devisee of land must elect either to refuse to accept the devise or to accept it according to its terms: Zimmerman v. Lebo, 151 Pa. 345; Levengood's Est., 38 Pa.Super. 491.
By his election to accept the devise, the devisee makes the charge on the land his personal debt, and if, and when, he pays it, it is discharged, and he cannot hold it open against the estate of the testator or donor or any one claiming as legatee under the will: Headley v. Renner, 129 Pa. 542; Lobach's Case, 6 Watts 167.
Philip B. Linn, for appellee. -- Words of description do not indicate an intention to charge real estate: Jackson v. Pittsburgh, 36 Pa.Super. 274; Hoff's App., 24 Pa. 200.
Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING and SIMPSON, JJ.
Testator died leaving both real and personal estate. By his will, he gave all his property in trust for his wife for life, and provided that "after the Death of my wife Angeline Shaffer, I will give and bequeath to my Half Brother Charles Grant Shaffer all that Farm and Tennent House, subject to the Widow Dower, along Buffalow Crick, known as the Stoltzfus farm and all the residue I will give and bequeath to Sarah Alice Hartman, Personal and real such as my Home stead along the Milton Road, Timber tract and the two Houses and lots in Lewisburg, Pa., by her paying one thousand dollars to the Bethany Orphans Home at Womelsdorf, Pa."
The widow's dower on the Stoltzfus Farm consisted of the sum of $3,600, charged thereon, on testator's purchase of the property in partition proceedings, the income thereof to be paid to the widow of Jacob Stoltzfus, the former owner during her life, and at her decease the principal to be paid to his nine children in equal shares. It was also secured by nine bonds and mortgages of this testator, for $400 each. The widow of Jacob Stoltzfus died about eight months after the date of John W. Shaffer's will, and two days before his death, whereby the principal of the dower became forthwith payable to the nine children.
The trustees of the estate thereupon filed a petition, averring the above facts, praying that Charles Grant Shaffer, the devisee of the said Stoltzfus farm after the death of testator's widow, should elect "whether or not he will accept the devise above mentioned cum onere," and forthwith discharge the said dower debt, "or forfeit all claim to said farm under said will." He answered the petition by electing to take the farm; but averred that the words "subject to the Widow Dower" were descriptive only, intended to designate the property referred to, and not meant as a charge thereon, and, as the obligation was a personal debt of testator, it was payable out of the personal and residuary estate. He declared his willingness, if that contention was not sustained, to take up the nine bonds and mortgages and have them assigned to himself; and in that event he prayed the court to decree that the trustees and the widow should pay the interest thereon to him, as such assignee, during the lifetime of the widow.
Testimony was taken in the court below, amplifying but in no respect affecting the facts above set forth, whereupon that court dismissed the petition, holding that the words "subject to the Widow Dower" were descriptive only, and that the personal estate, which is the primary fund for the payment of debts, should be used to discharge the principal of the dower. From that decree of dismissal the trustees prosecuted this appeal.
It is undoubtedly true that creditors of a decedent may always claim payment out of the personal estate, no matter what his will may provide. But it is equally true that a testator may direct, as between his distributees, upon whom or upon what property any obligation of his shall ultimately fall; and if they accept his bounty they must do so cum onere: Stump v. Findlay, 2 Rawle, 168; Crone's App., 103 Pa. 571; Armstrong v. Walker, 150 Pa. 585; Zimmerman v. Lebo, 151 Pa. 345; Cooley v. Houston, 229 Pa. 495.
It is also undoubtedly true that as the personal estate is the primary fund for the payment of debts, he who asserts that any other part of the estate must be resorted to for the...
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