
    SPRANKLE VS. COMMONWEALTH.
    Where a fee is devised the testator cannot deprive the devisee of the essential rights and privileges attached thereto.
    Where the failure to pay collateral inheritance tax promptly is caused by an honest doubt as to the liability the penalty for non payment should not be-exacted. «
    Error to the Common Pleas of Huntingdon County. No. 70, Jan. Term, 1884.
    This was a case stated brought by the Commonwealth of' Penna. against the executors of Michael Sprankle, deceased, and against Peter Sprankle. There was a case stated as follows;
    Michael Sprankle died at his residence in Morris Township, in said County, February 13th, 1882, seized in his demesne as of fee of a farm adjoining Samuel .and Robert Tussey and others, containing 205 acres; said decedent having first made his last will and testament, dated January 23,1882, which was duly admitted to probate (and is of record in the Register's office in and for said County) on the 17th day of February, A. IX, 1882, and a copy of which will is hereto annexed and made a part of this-case stated. Said testator, in and by said will, devised intéraliaT as follows; “I give and bequeath to my nephew, Peter Sprankle,. “of Samuel Sprankle, all of my- messuages, lands and tenements. “whatsoever, except as hereinafter stated, situated, lying and “being in the County of Huntingdon, State of Pennsylvania, “bounded by lands of Robert Tussey, James Seeds and Samuel “Tussey; and to my niece, Charlotte Sprankle, I give and “bequeath the sum of five hundred dollars, which sum is to be “paid to her by the said Peter Sprankle, who is also to pay any “of my just debts, if there be any not paid, by the proceeds of the “‘sale of my personal property. I hereby also say that Peter fi‘Sp rankle is not to sell or dispose of said land, nor can it be sold or •“disposed of tor the debts of the said Peter Sprankle during his •“life-time; and after his death, if he leave no heirs, the aforesaid “lands, messuages and tenements to be willed by him to some “one of the Sprankle name, or if no will be made by him, the •“said Peter Sprankle, the above lands to revert to some one of •“the Sprankle family.”
    Said Michael Sprankle left to survive him neither father, ■mother, wife, children nor lineal decendants, but collateral kindred only: he never having been married. On the 14th .August, 1882, an Appraiser was duly 'appointed by. said Register to appraise the estate, of said Michael Sprankle, for ■Collateral Inheritance Tax purpose. August 19th, 1882, an inventory and appraisement of said estate was filed by said A.ppraiser, above named farm being appraised therein at $7,000 —the legacy to Charlotte to be deducted ; and no Appeal was taken from said Appraisement. The said Inventory and ■Appraisement are hereby made part of this ease stated.
    Pursuant to said Appraisement, the defendants paid to' the Register, on February 10th, 1883, the collateral inheritance tax ■upon the personalty, the legacy to Charlotte, and upon the sum .-at which the alleged life estate was conditionally valued by said Appraiser; but said tax has not been paid upon the remaining part of the valuation of said farm, viz: the sum of $3,663.40,— -defendants claiming that Peter Sprankle has but a life estate in .-said farm, and that only the tax on this is demandable now.
    The right of the Commonwealth to present payment from the "defendants of the tax upon said sum of $3,666.40, or any part -of it, is the question upon which the opinion and judgment of ■.the Court in this case is desired.
    It is agreed that said Peter Sprankle is still living, aud that -•defendants are executors of the will of said Michael Sprankle, -deed.
    1. If the Court be of opinion.that said Peter Sprankle, under -.said will, has an estate in said farm, greater than a life estate, áind the executors be responsible for the payment of the Collateral Inheritance Tax thereon, or •
    
      2. If the Court be of opinion that said Peter Sprankle, under said will, has hut a life estate in said farm, but that the Collateral Inheritance Tax is presently demandable by the Commonwealth from the defendants upon the’ whole valuation of said' farm — upon the remainder -as well as upon such life estate — them (in either case) judgment to be entered in favor of plaintiff and against defendants for $183.18 with interest from such date as-the Court shall determine it to be legally chargeable from.
    But, if the Court should he of opinion that said Peter Sprankle has only a life estate in said farm, under said will and-that the tax upon said life estate only, is presently demand-able, or that the executors are not liable to pay said tax, them judgment to be entered in favor of defendants.
    The costs to follow the judgment, and both parties reserving' the right to sue out a writ of error to the judgment of the Court..
    And the following additional facts are agreed upon and to betaken and considered as if they had been inserted in the original case stated, viz: That said Peter Sprankle has brothers and
    sisters, some of whom are married and have children; that Michael Sprankle, the testator, had brothers and sisters, some of whom survive him, and others died leaving children, who are cousins of said'Peter Sprankle; and that the last will and testament of Michael Sprankle was drawn by a Justice of the Peace..
    3. If the Court be of the opinion that said Collateral Tax; remaining unpaid is presently, demandable by the plaintiff from¡ any or all of said defendants, their judgment to be entered against such of the defendants as in the opinion of the Court are' liable to pay the same, -for said sum of $183.18 with interest from the time aforesaid, otherwise judgment to be entered foiv defendants.
    The Court below entered judgment in favor of the Commonwealth, in the following opinion per :
    Simonton, P. J.
    If Peter Sprankle took an estate in fee in the lands devised to* him by Michael Sprankle, he is, of course, liable for the collateral inheritance tax, as there is no provision in the will charging; testator’s general estate with its payment.
    
      The first question raised by the case stated is, therefore, whether under said will Peter Sprankle took a fee or a life estate in the lands devised.
    We must loolc at the terms of the will in the light of the legal principles which aid in interpreting them, in order to obtain an answer to this question, bearing in mind that the intent of the testator when ascertained is to control, unless it be such an intent as is forbidden, by the law, to prevail; Doebler’s Appeal, 14 P. P. S. 9.
    The will is set out in the case stated and we need not repeat'it here. The devise of testator’s .lands and tenements to Peter would, certainly, standing alone, at least under the Act of April 8, 1833, Sect.-9. P. L. 250, pass the fee. And such, also, is the effect of the provision in the will that Peter shall pay the legacy of $500 to testator’s niece, and any of his just debts not paid out of the personal estate; Lobach’s Case, 6 Watts, 167 (see the reason as stated by Kennedy, J. P. 171).
    Can this clear devise of a fee be limited to vest only a life estate by the subsequent directions in the will, that Peter is not to sell the lands during his life-time ; that they are not to be subject to his debts; that if he leaves no heirs they are to be “willed” by him to some one of the Sprankle name, and in default of a will to revert to some one of the Sprankle family ? We think not. “No one can create what is in the intendment of the law an estate in fee and deprive the tenant of those essential rights and privileges which the law annexes to it. He cannot make a new estate unknown to the law;" Sharswood, J. in Doebler’s Appeal, 14 P. F. S., p. 17; See also Reifsnyder vs. Hunter, 7; Harris 41.
    If the general intent of the testator had been to give only a life estate, it must prevail; but as it was, manifestly, to confer a fee, the particular intent to limit the power of the devisee over the estate must fail, for as is said in Doebler’s Appeal, supra., “a particular intent must always give way to a general one where the two cannot consist together.”
    The same result would be reached by the application of the principles stated and applied in Kepple’s Appeal, 3 P. F. S. 211 : Karker’s Appeal, 10 P. F. S. 141; Jauretche vs. Proctor, 12 Wright 466.
    We'therefore conclude that Peter Sprankle took a fee in the lands in question, and is liable for the collateral inheritance tax, due thereon.
    The Act of April 10, 1849, sec. 14 P. L. 572, provides that “if the tax shall not be paid within one year from the death of said decedent interest shall then be charged at the rate of twelve per cent, per annum on such tax, computing from the time of such decedent’s death.” Manifestly, the charge of interest at the rate of twelve per cent, per annum in this act is intended as a penalty for neglect to pay promptly ; as was said of a similar provision in Bank vs. Commonwealth, 10 Barr 451. The case stated clearly shows that the failure to pay promptly was caused by an honest doubt as to who was liable. In such a case the penalty ought • not to be exacted ; Commonwealth vs. Ebervale Coal Co., 2 Pearson 421.
    We therefore direct judgment to be entered in favor of 'the Commonwealth against Peter Sprankle, defendant, for one hundred and eighty-three dollars and eighteen cents ($183.18), and costs.
    Peter Sprankle then took a writ of error, complaining of the action of the Court in entering judgment against him.
    Brown, Bailey and Brown, attorneys for plaintiff in error,
    argued that the estate was not liable for the collateral inheritance tax; Commonwealth vs. Coleman’s Administrator, 52 Penna. 468. Peter Sprankle would not be liable for the collateral inheritance tax upon the fee, if he only took a life estate, although a fee be given in the first part of the will, it may be restrained by a subsequent word, so as to convert it into a life estate; Urich’s Appeal, 86 Penna. 386; Urich vs. Merkel, 81 Penna. 332; Hill vs. Hill, 74 Penna. 173. The limitation over upon failure of children does not raise an estate tail, but only a life estate ; Taylor vs. Taylor, 63 Penna. 481. The direction that Peter Sprankle should pay a certain legacy of $500, and possibly some of the debts, lias no "bearing- upon the question, for, if uuder the other parts of the will, he had but a life estate, it cannot bo enlarged to a fee, by his paying either legacies or debts. Dewitt vs. Eldred, 4 W. & S. 414; Lobach’s Case, 6 W. 167; Harden vs. Hays, 9 Penna. 151.
    
      Messrs. Myton and Schock, contra,
    argued that the preamble to a will is a guide, in many cases to the testator’s intention; Cassell vs. Cook, 8 S. & R. 289 Rupp vs. Eberly, 79 Penna. 145. The preamble to Michael Sprankle’s will shows an intention to dispose of his entire estate. The first part of the devise to Peter Sprankle evidently would have given him a fee; the restraining clause is not sufficient to lessen the estate. There is nothing in the will to indicate that the testator meant children by the word heirs; Crisswell’s Appeal, 41 Penna. 288; Doebler’s Appeal, 64 Penna. 9. The presumption, since the Act of Apr. 8, 1883, is in favor of a fee being given, a contrary intention must appear in the will; Shirey vs. Postlewaite, 72 Penna. 42. A charge upon the devisee, with respect to the devise, enlarges the-estate to a fee, or passes a fee without words of limitation; Harden vs. Hays, 9 Penna. 151. A devise to one of his heirs upon condition that he should not alien will pass a fee, the condition being void; Jauretche vs. Proctor, 48 Penna. 471; Kepple’s Appeal, 53 Penna. 211; Reifsnyder vs. Hunter, 19 Penna. 41. The fee given by testator in the first devising clause is not cut down to a life estate, by words restricting or forbiding the sale of the land of the devisee, even if followed by devise over, or precatory words to the effect that the devisee will leave the land to certain persons or for certain uses, should he die without issue ; Church vs. Disbrow, 52 Penna. 219; Pennock’s Estate, 8 H. 268. Nor by a provision, that should any of my children die without heirs his bequeathed share shall revert; Shutt vs. Rambo, 57 Penna. 149. A limitation over, after the death of the devisee does not reduce the fee'to a life estate, where the limitation over is to the children and heirs of the devisee ;• Williams vs. Leech, 28 Penna. 89. Particular intent must yield to a general intent, if both cannot consist together. No one can create what in law is a fee, and deprive the tenant of its essential rights and privileges which the law annexes to it; Doebler’s Appeal, 64 Penna. 9.
   The Supreme Court affirmed the judgment of the Common Pleas on the 9th May, 1884 in the following opinion :

Per Curiam.

■ We think the Court correctly found that Peter Sprankle tooli a fee in the lands devised to him. Such is the clear import of, the devise in the first clause of- the will. The subsequent par- . ticular intent to limit his power to devise, cannot be held to-defeat the fee previously granted. When the two ax-e in appai’ent conflict, the lesser must give way to the general intent giviiig; a greater estate in clear terms.

Judgment affirmed.  