
    Wangler’s Estate.
    
      Will — Legacy—Gift of interest in partnership — Father and son.
    
    Where a father and son carry on a partnership business on premis.es of which the father owns the leasehold, and the father by his will gives to the son “the building or works,” where the business is carried on “and all profit, income and advantage, that may result therefrom,” the son, if he takes the bequest, must take it subject to such debts as may be owing by the partnership at the time of the death of the father.
    Argued May 9, 1912.
    Appeal, No. 174, April T., 1912, by Charles W. Wangler, from decree of O. C. Fifth District, First Monday of May, 1912, dismissing exceptions to adjudication in Estate of Charles S. Wangler, deceased.
    Before Rice, P. J., Henderson, Morrison, Head and Porter, JJ.
    Affirmed.
    Exceptions to adjudication.
    Hawkins, P. J., filed the following opinion:
    The question in this case is whether or not the gift to Charles W. Wangler is chargeable with the partnership debts of himself and testator. The facts are these:
    By the first clause of the will testator directs “all ” his debts and funeral expenses to be paid “out of the amount of cash I may have on hand or in bank;” by the second clause the balance of this money was given his daughters Cezelia and Stella; and by the fourth “the building or works situated and known as No. 628 Third Street, Pittsburgh, N. S., and all profit, income and advantage that may result therefrom with the understanding that he is to pay to each of my daughters Cezelia and Stella the sum of three hundred dollars a piece,” was given to his son Charles W. The devisee says that the premises consisted of a Schenley leasehold and machinery attached, and were occupied by him and his father as partners under the firm name of C. S. Wangler & Son in the wagon making business; and that the assets of the firm consisted of tools, stock (lumber, • etc.) ■ on hand, and bills receivable. It is claimed by exceptants that the gift to Charles of “the building and works ” embraced the business of C. S. Wangler & Son and was therefore subject to the partnership debts. If it was not, decedent died intestate as to his interest in the firm. It is suggested in this connection that assuming the construction doubtful, equalization must turn the scale in favor of exceptants. Restricting Charles’ gift to building and machinery its value would be
    (less charge).............................$2,900.0,0
    Mrs. Moeller’s devise, (less charge)........ 1,400.00
    Cezelia’s legacy about................... 1,200.00
    Stella’s legacy about.................... 1,200.00
    If exceptants’ theory be correct, their shares will be proportionately increased, and Charles diminished.
    The assets and liabilities of the firm are these:
    Assets:
    Tools and stock......•................... $300.00
    Bills receivable........................... 583.66
    $883.66
    
      Liabilities:
    Debts (paid)...........................$1,732.68
    Deficit............................. $849.02
    For one-half of which decedent is liable____$424.51
    But accountant claims credit by mistake for $433.08, being excessive credit of $8.57.
    Among the liabilities assumed by the firm was the ground rent on the leasehold.
    If the gift to Charles had been simply of the building and machinery attached his theory of construction must be conceded; but reading the whole dispositive clause it seems clear that testator had in mind a going concern. His own definition of the word “building,” is “works,” which, as explained by extrinsic evidence, meant that for which it had been used and therefore the wagon works; and the direction following in the same sentence that he shall have “all the profit, income and advantage that may result therefrom,” necessarily implied the means of realizing “profit, income and advantage,” and therefore a gift of the business itself. Machinery, though not mentioned, is admittedly embraced in the gift as being a necessary part of the wagon works. The tools in use and stock on hand would be equally necessary parts of the res mota; and how could there result “profits, income or advantage” without the means of continuing the business? Everything necessary to perfect the establishment and fit it for the use designed is a part of it: Patterson v. Delaware County, 70 Pa. 381-384. Nothing is said in the will about closing out the firm business. No disposition is made of firm assets other than the gift to testator’s son. The fact that Mr. Wangler undertook to make a will implied an intent to make a complete disposition of his estate; and the inclusion of firm assets in the gift to the son, is the only construction which will prevent intestacy. The gift then embracing everything used in carrying on the business of wagon making, the donee must, in qrnking his election, take the whole or nothing under the will; he might not select the good, and reject’the worthless, ánd his acceptance therefore settled.the extent of ownership. ........
    The question of liability for payment of firm debts remains. When Mr. Wangler gave direction that his “debts and funeral expenses” should be paid out of his “cash on hand and in bank” it must of course be conceded that he meant payment out of his individual cash, for that was the only cash presently available; the firm assets must pass into the surviving partner’s hands and be the subject of separate settlement. Individual source of payment implies individual liabilities; and the association of the direction to pay his debts, with that of payment of his funeral expenses points to the same purpose. When therefore he had given his two daughters “the balance of cash on hand and in bank” he had made a complete disposition of that fund. On the other hand, the firm business is made a distinct subject of disposition. It was given to his son and surviving partner with its good will to make the best out of it. Having been bequeathed as a going concern, he took it with all its incidents and therefore with its burthens. Who accepts a benefit must bear its incidental burthens is axiomatic: Broom’s
    Maxims, *680. No one will question that this donee must pay the ground rent charged on the leasehold; and the same reason exists for holding him liable for payment of firm debts. They were both incidents to the nature of the thing bequeathed and both paid, so far as paid, out of firm.assets: Bothamley v. Sherson, L. It. 20 Eq. 304-315. They were thus treated by the firm, and therefore by Mr. Wangler as belonging to the same class. The son having accepted the business subject to these charges it is natural to conclude that he meant to take them on himself; and the law may very well imply a promise to perform what he has so assumed: Broom’s Maxims, *681. He had no reason to complain of this construction, for with all deductions, including firm debts, the value of his share will be nearly double those of his sisters. This is not a question of charging debts against the value of tools, stock and bills receivable alone, but against the business bequeathed, which included everything that was used by the firm for this purpose,' and therefore the building and machinery, as well as these assets. The whole was bequeathed for this purpose, and the whole is chargeable. The probability is that the very contingency of firm liabilities was taken into consideration in determining the scope of the gift; for there is no apparent reason for discrimination as between the son and hjs sisters. What the firm liabilities would be was necessarily an uncertain element against which testator may be assumed to have intended to provide; and fortunately for Charles the turn was in his favor. If the firm settlement had resulted the other way, his sisters, on his theory of construction, would have shared in the surplus, and a nearer approach to the equity of equality have been made.
    No case has been found on all fours with the present: but Farquhar v. Hadden, L. R. 7 Ch. App. 1, is strikingly like it in one aspect of this case. Testator gave certain leasehold premises in which his “business” was “carried on” and all his share of the office furniture, books and other office and household fixtures therein, to his partner “for his own absolute use and benefit.” What was contended by the legatee was that the bequest was “not merely a gift of the interest of the testator in the property but a gift of that interest with an additional gift of so much of his residuary personal estate as should be required to free this--property from its ordinary liability to pay partnership debts,” but the court. (James and Mellish, JJ.) held that the gift embraced only such interest as the executors could have claimed from the surviving partner, had there been no bequest. ;
    Objection is made that because .testator expressly charged this gift with specified sums of money, there arose an'implied exoneration from any further charge and therefore from firm debts. The obvious purpose in making these charges was to promote, the equity of equalization, but it does not necessarily follow that payment of firm debts in addition was inconsistent with that purpose. The element of uncertainty in the character of the gift was no doubt taken into consideration. Having presumably the law of liability of firm assets for firm debts in mind it is fair to assume that if he had intended to exonerate his gift from these debts he would have said so. Testator says this legatee shall pay certain charges and the law says he shall pay certain debts; and the two are entirely consistent: Hoover v. Hoover, 5 Pa. 351. Testator had no power to take away the right of firm creditors to payment out of firm assets, and more than the mere charge of a sum of money would seem to be necessary to exonerate the legatee. The principle is thoroughly established that a legatee is liable for charges incident to the nature of the thing given, as leasehold rent and calls on railway shares; and liability of firm assets for firm debts is clearly within the reason of the principle. There is nothing in the terms of this will which necessarily implies an intent to make so radical a change as that suggested. No reference is made to firm debts; and there is nothing to justify an implication of exoneration from payment of them. The testamentary charge in this_case is not incident to the nature of the thing given, but a special creation of Mr. Wangler, and falls under a different principle. The testator must therefore be supposed to have given this property as it was, subject to the operation of the law of partnership: Bothamley v. Sherson, L. R. 20 Eq. 304. When the son saw fit to accept the legacy, he did so with full knowledge of the facts. He admits the operation of the partnership law by in fact applying the value of the movable firm assets toward liquidation of firm debts; and is estopped from denying liability of the leasehold and machinery attached by having in fact treated them as firm assets while a member of the firm.
    It will thus be seen that the testator’s general intent was to promote the equity of equalization as between his children. Absolute equality was in the circumstances hardly to be expected; and the parties must abide the logic of the facts.
    
      Error assigned was decree of court.
    
      A. E. Weger, with him Robert F. Weger, for appellant. — ■
    A bequest of a partner’s interest in an insolvent firm fails: Farquhar v. Hadden, L. R. 7 Ch. App. 1; Staats v. Bristow, 73 N. Y. 264.
    There is no presumption that a leasehold standing in the name of one of several partners constitutes partnership assets, notwithstanding the partnership business is carried on upon the leased premises. The presumption is otherr wise: Chamberlin v. Chamberlin, 44 N. Y. Super. Ct. 116.
    A bequest of a going business does not impose on the legatee the duty of paying the existing debts of the business: Stewart v. Denton, 4 Dough 219; Mulligan’s Est., 157 Pa. 98; Simon’s Est., 50 Pitts. Leg. J. 125; Smith’s Est., 11 Pa. Dist. Rep. 375; Fleming’s Est., 184 Pa. 188.
    
      Edward Schreinder, for appellee.
    — The law favors a construction of the will which will produce equality in accordance with the intestate laws of the state of Pennsylvania, and whoever claims against the laws of descent must show some satisfactory written evidence of title on which to base his claim: Lewis’s App., 89 Pa. 509; Snyder’s Est., 3 Pa. Dist. Rep. 382; Malone v. Dobbins, 23 Pa. 296; Lipman’s App., 30 Pa. 180.
    The son took the bequest with the burden of the debts: Earp’s Will, 1 Pars. Sel. Eq. Cas. 453; Flanagan’s Est., 52 Pitts. Leg. J. 204; Farquhar v. Hadden, L. R. 7 'Ch. App. 1; Nave v. Sturges, 5 Mo. App. 557.
    October 14, 1912:
   Opinion by

Henderson, J.,

The questions raised on this appeal are sufficiently discussed in the well-considered opinion filed by the learned judge of the orphans’ court and elaboration of the argument would not be profitable. We think the decision arrived at is fairly deducible-fromthe terms of the will of the decedent.

The decree is affirmed,  