Ziegler against Grim, 6 Watts 106

The opinion of the Court was delivered by Kennedy, J.

The controversy between the parties in this case, has arisen out of the last will of John Siegfried the elder; and if the construction given to it by the court below, in then: charge to the jury be correct, all the errors assigned must fall to the ground: for it is clear, that it would have been wholly inconsistent with their construction, to have admitted any part of the evidence mentioned in the bills of exception to the opinion of the court in rejecting it, which form the ground of all the errors assigned, except the last, that embraces the exception to the charge of the court on the construction of the will.

Being of opinion, however, that the construction put on the will by the court was right; and that the tendency of the evidence rejected to defeat it with the jury, had it been given to them, is so self evident, as to render it impossible to make it more so by reasoning on it, we shall, therefore, pretermit the exceptions to the opinion of the court in rejecting the evidence, and content ourselves with a brief notice of the charge of the court to the jury.

It meets our entire approbation; because, it seems to be better suited to give effect to the particular, as well as the main and general intent of the testator, so far as it is to be discovered from the face of the will itself, whence alone it must be collected.

I do not know that any thing can be added to the charge of the court, which would show more clearly and distinctly than it does, that the construction put on- the will by the court, is the one which ought to be given to it, in order to carry into execution the intention of the testator, which both courts.and juries are bound alike to regard, and to make the rule of then decision, so far as it may be, consistent with the rules and policy of the law.

Nothing can be more clear than that, by the terms of the will, the old place is given to John, the grandson of the testator, (who was only seven years of age at the time of trying this cause) when he shall attain his age of twenty-one, to be taken by him, if he chooses, at an appraisement then to be made, and not before, by seven men to be appointed by the executors of the will for that purpose: and it is equally clear, that this appraisement, if the grandson should take the old place at it, is to be paid by him, excepting his own share thereof, which he is to retain, and. is to form a part of the estate or fund, which the testator has directed to be divided into two equal parts, one whereof is given to the plaintiffs and the other to the wards of the defendants.

But it is utterly impossible to determine, what proportion of the estate, thus directed to be .divided, this old place will be equal to, until the time shall come around at which the appraisement of it is to be made, and it shall have been made accordingly. This, however, agreeably to the direction of the will in this respect, which is in terms very explicit, and free from all ambiguity, cannot be done for more than thirteen years yet to come.

Unless, then, the division of every part of the estate, so directed to be divided into two parts for the exclusive benefit of the plaintiffs, and the wards of the defendants, be postponed 'until John, the grandson, shall have arrived at full age, and shall have taken the old place at the appraisement to be made thereof, which I presume both parties here would object to, as being not only unreasonable, but contrary to the manifest intention of the testator, there seems to be no alternative left, but to divide equally now between them, as much of the estate allotted to them by the will, as is capable of being valued and divided into two equal parts, consistently with the tenor of the will.

It may possibly be objected, that this does not seem to comport altogether with that equality of partition of the testator’s estate, which he has directed to be made of it, between the plaintiffs and the wards of the defendants; in as much as it excludes the plaintiffs from all participation in the benefits to be derived from the old place during the interim, while the wards of the-defendants on the other hand, may be said, through the privileges granted to their father, to be obtaining their maintenance, in part, at least from it.

This, however, is merely a consequence of the relation and dependence between them and their father, and-not the fruit of any gift by the testator directly to them. Nor can it be said to form, either directly or indirectly, any part of the estate which is directed by the will to be given and divided equally in two parts, between the plaintiffs and the wards of the defendants.

For so far as the testator, in any of the subsequent parts of his will, has disposed of to other persons any portion of his estate, seemingly comprehended within what he in the commencement of it has divided into two parts, to be given to the parties here, it must be considered as an exception, out of what in terms he has previously directed to be divided into two parts, between the plaintiffs and the wards of the defendants.

This must be so, because by the first item of the will, the testator has “bequeathed, ordered, and directed all his worldly property wherewith God had blessed him, into two parts, the one to be given to his daughter, intermarried with Jesse Ziegler, the plaintiffs, but for a certain reason, he bequeaths his son John Siegfried’s entire share, (meaning the other

part clearly) to all his children (the wards of the defendants) in equal shares.” Now, although in terms, the whole of the testator’s estate is embraced in the first item, and disposed of in favour of the plaintiffs and the wards of the defendants, yet in the sequel of his will, the testator gives to his wife a portion of his personal estate, and an interest during her widowhood in the old place. He, likewise, gives to his son John, certain rights and privileges in the old place to be enjoyed by him conditionally.

These latter devises and bequests, being introduced into the will, after the provision in favour of the plaintiffs, and the wards of the defendants, will reduce, to the amount thereof, the amount previously given to the plaintiffs, and the wards of the defendants; so that they will only take the residuum of the estate.

It may be, too, that some of the incumbrances imposed by the subsequent clauses of the will, upon the old place, will not have expired by the time that the grandson shall have attained full age, when it is to be appraised, which would detract from its value, as the appraisement would have to be made subject to them, whatever they might be: or it may be, that they will all have ceased to exist, which would enhance the appraisement of it.

But these are not all the considerations which operate against making an appraisement and division of the old place before the grandson shall come of age: for, until then, supposing his interest under the will to be vested, still, being a minor, he is, and will be incapable of determining whether he will take it at the appraisement that shall be made, or of even binding himself to do so.

And again, when he arrives at full age, and the appraisement is made, it may be, that he will decline taking it at the appraisement: and should this happen to be the case, the appraisement will then be no test of its proportional value of the whole estate that is to be divided into the two parts; this part of the estate will have to be ascertained by an actual sale thereof, to be made by the executors under the authority of the will, when the amount of the money arising therefrom, will exhibit its relative value, and what it must be taken at, in making the division between the plaintiffs, and the wards of the defendants, which may happen to be, less, or possibly more than the appraisement.

Nothing, indeed, but a sale can determine in this event with any certainty, the true value of the old place.

The only ground urged by the plaintiffs for having an appraisement made now, and being paid their half or full portion out of the personal estate on hand, that has any plausibility in it, is the clause in the will, whereby the testator after giving to his grandson the right to take the old place at the appraisement, directs, that he “ shall pay to his brothers and sisters, but he shall also have his part to himself, according to the appraisement.” Thus directing, as is alleged, the whole appraisement of the old place, except his own share of it, to be paid to his brothers and sisters exclusively, leaving the plaintiffs out of view altogether; and as the plaintiffs by the express provisions of the will, are to have an equal moiety of the whole, they, therefore, as it is contended, have a right to claim, and to be paid their share out of the other part of the estate remaining in the hands of the defendants, which is claimed by the latter for then wards; otherwise, the testator would have directed a due proportion of the appraisement of the old place, to be paid by his grandson to his daughter, the plaintiff, as well as to the brothers and sisters of the grandson.

But the clause, upon which this argument is based, is, at most, far from being conclusive in favour of the plaintiffs’ right to demand at this time, their full share of the estate: because, taken in connection with the subsequen clause of the will, whereby, after having given to his wife, the "dwelling-house, stabling, shed-room, yard, garden, spring or wash-house, &c., all situate on, and being part of the old place, with other advantages therein specified, to be derived therefrom, the testator declares, “ all this shall she have at the proper time, and so long as she lives and is my widow; and after this, all my property shall come into the two above mentioned parts” it may be taken as rather going to show, that the testator did not intend that the division of his estate into two parts, should be made either in part, or in whole, until after the death, or subsequent marriage of his wife.

This would seem to be quite as plausible as what the plaintiffs contend for; and if it were to obtain, the plaintiffs, as the wife of the testator is still living and unmarried, would not be entitled to claim any thing until then.

But to withhold from them the whole of what is given to them by the will, until the death or marriage of the widow, or the arrival of the grandson at full age, would seem to be unreasonable and contrary to what must have been intended by the testator; for seeing he has made no disposition, and given no direction during this interim for the care and improvement, or use that is to be made of any part of the estate, that is to be divided into the two parts excepting the old place, the conclusion becomes highly probable, if not almost irresistible, that he intended it should be divided as early as practicable, in order to advance and promote the interests of all those, who appear to have been the exclusive objects of his bounty in regard to it.

And as to the circumstance of the plaintiffs not being mentioned or named in the clause, so much relied on by them, it is rather apparent from the whole tenor and scope of the will, that it was an omission which arose from inadvertence, and ought, therefore, to be supplied to fulfil the intention of the testator. Judgment affirmed.