
    LEECH v. ROBINSON.
    The will air! o rlicih thereto in question construed to give testator's entire esi.urs first lo his wife for life, and then to his children in equal shares, absolutely and in fee, but to limit and restrict the use and enjoyment of his living children to the income until partition, and to make the concurrence of the executors necessary to determine when it would be prudent to make the partition.
    Error to the district court of Allegheny county.
    Case stated.
    General William Robinson, jr., late of the city of Allegheny, died on the 25th day of February, 1868, having first made his last will, bearing date the 15 th of March, 1861, with several codicils thereto of later date. After his death, to wit, bn the 6th day of March, 1868, said will and codicils were duly proved before the register of Allegheny county, and the same are recorded in will book, vol. 13, page 175.
    A copy of said will and, codicils is hereto annexed and made part of this case stated.
    At the dale of the said will, and at the time of his death, the said William Robinson, jr., was seized in fee {inter alia), of a certain lot of ground, situate in said city of Allegheny, and hereinafter more particularly mentioned.
    After making provision in and by his said will lor his widow during her lifetime, said testator devised inter alia, as follows, to wit:
    
      “ I hereby further declare that it is my will that the entire income of my estate shall be divided equally, share and share alike, amongst or between all my children, as follows, that is to say :
    3d. “To James Robinson, my eldest son, one-seventh part of the net income of all my estate, to be paid to him and not to any other person, as the same maybe collected during,his life, with power to devise the same to such of his brothers and sisters, or their children, as he may elect or nominate in his last will.”
    , 4th. “To the heirs of my son, William O’Hara Robinson, one-seventh part of said income of my estate.”
    5th. “ In like manner to the heirs of my son, Alexander Parker Rob-* ioson, one-seventh of said net income.”
    6th. “ In like manner to John D. Robinson, one-seventh part of said net income, with power to devise the same by will to such of his brothers and sisters, or their children, as he may elect or nominate to that end.”
    7th. “To my daughters, Anna R. Blair and Mary D. Shoenberger, and their heirs, in like manner one-seventh part of said income each, hereby constituting and appointing their kind friend, John H. Shoen-berger, of the city of Pittsburgh, trustee for my said daughters above-named, with power to act in their behalf in all matters relating to their interest in my said estate.”
    8th. “In like manner to Frank P. Robinson, my son, and his heirs, one seventh part of said income.”
    
      9U1. “ It being my desire in the foregoing clauses of this my last will and testament, to limit the estate hereby devised', in such manner and form as to provide for each of my said heirs the income aforesaid, for their personal benefit and support during their natural lives, and to guard, so far as human foresight may, against improvidence and misfortune, their respective proportions of said income to be paid over to each of my said heirs personally.”
    10th It is my will also, that on the youngest child of my deceased son, Alexander, reaching the age of twenty-one years, then and in that case the whole of my estate may be subdivided and -separated into seven, -equal parts, as represented by their respective shares, and held by them in severalty, subject to the restrictions and limitations specified in the foregoing clauses as to descent to my heirs.”
    
      “ That as little obscurity as possible as to phraseology may rest upon the settlement of my estate, as provided for in this my last will and testament, it is my design to invest each of my living heirs with a life estate in the income of my property, with reversion over to their heirs as provided for above, on the maturity of the youngest child of my son Alexander, when and at which time the respective proportions of the heirs of my sons, William and Alexander, may beset apart and vested in them in fee.’7
    A fourth codicil to said will, bearing date December 17, 1865, is in these words:
    “ It i5 also my will and testament by this additional codicil, that the 10th section thereof, limiting the partition of my estate to the period of the maturity of age of the youngest child of my deceased son Alexander, ■be and the same is hereby revoked, made null and void, and that said partition may proceed and be carried out at any time my executors and heirs may proceed to the partition thereof, as though no such clause as the tenth, to which this codicil has reference, was inserted in the will afore=-:said, my whole property and estate, or any partition thereof to my heirs, remaining subject to the payment of the income thereof to my beloved wife during her life.”
    At the date of said will the testator had five children living, viz., the said James Robinson, John D. Robinson, Mrs. Anna R. Blair, Mrs. Mary P. Shoenberger, and Frank P. Robinson. Two of his children, viz., William O’Hara Robinson, and Alexander Parker Robinson, were then dead, leaving issue living.
    James Robinson died in the lifetime of the testator, to wit, about January 1, 1868, unmarried and without issue, and the testator’s widow died in the year 1868.
    On the tenth day of February, 1873, the plaintiff sold and agreed to •convey to the defendant the undivided one-sixth part of the lot of ground hereinbefore mentioned, by an agreement in writing duly executed by the parties, a copy whereof is hereby annexed to this case stated, and made part thereof, in which agreement said lot of ground is particularly described. By the terms of said agreement the defendant bound himself to pay to the plaintiff for the said undivided one-sixth of said lot the sum of $5,000, two thousand dollars whereof were to be paid on the 10th day of March, 1873.
    On the 10th day of March, 1873, the plaintiff duly tendered to the defendant a deed for the undivided one-sixth part of said lot of ground and demanded payment of the $2,000 purchase money due that day. The .defendant refused to accept the deed so tendered orto pay the said instalment of purchase money, alleging that under the will of said William Robinson, jr., and the facts hereinbefore stated, the plaintiff was not seized of and was unable to convey to the defendant an estate in fee in and to the undivided one-sixth part of said described lot of ground.
    It is admitted that the plaintiff’s deed tendered the defendant was otherwise good and sufficient, if under and by virtue of the said will of his father, William Robinson, Jr., and the facts hereinbefore stated, the plaintiff is seized of and can convey to the defendant an estate in fee simple in and to the undivided one-sixth part of said described lot of ground.
    This action is to recover the installment of purchase-money, to wit, $2,000, payable by the terms of said agreement, on the 10th day of March, 1873, with interest thereon from that date.
    Judgment is to be entered herein for the plaintiff for $2,000, with interest from the 10th day of March, 1873, an<i costs, if, upon the facts herein stated, the court should be of opinion that the plaintiff is seized of and can convey to the defendant an estate in fee in and to the undivided one-sixth part of said lot of ground. Otherwise judgment is to be entered for the defendant, with costs. Each of said parties to have the right to §ue out a writ of error to the Supreme Court.
   Opinion delivered October 27th, 1873, by

Agnew J.

This is a difficult will to interpret. Its arrangement is unskillful, and its expressions obscure, and the word heirs used in different senses, oftener referring to children than to a line of descent. An attentive reading of the will and codicils, however, reveals two leading thoughts-of the testator as to his children : First, that his “whole estate” should be divided into seven equal parts and divided among his living children, and the children of his deceased sons, at the arrival of the youngest child of Alexander Parker Robinson at full age. This is to be found as far down as the tenth section, which under the act relating to wills (there being no-devise over), would invest the possession of each share of the whole estate with a fee in the lands. The second leading thought in orderly arrangement, but first in the order of the will, was that the shares given to his living sons should be so limited and restricted in enjoyment that the income only should be paid to them during their lives. '1'his is to be found in the third clause. He says : “I hereby further declare that it is my will that the entire income of my estate shall be divided equally, share and share alike, amongst or between all my children as follows, that is to say ‘- -.’ ” Then follow the 3d, 4th, 5th, 6th, 7th and 8th sections that specially dispose of the income among his five living children, and all the heirs or children of his sons William O. and Alexander P. In some of these the bequest of the income is clearly for life, and in others, if the income were the principal, it would be in fee. But this is of no importance, when we discover from other parts of the will that by the word “income” the testator meant income in its ordinary sense — the profits or •earnings of the principal estate, and that this principal is left to be disposed of by other sections of the will. This reconciles the ninth and that part of the twelfth section which relate to the income. They are found to refer to the income only to be paid to his living sons during life, and show clearly that as to the income they were to be contented with that alone during life. After the ninth comes the tenth, which is the first to dispose of the whole estate, and divides it into seven equal parts, to be allotted when the youngest child of Alexander Parker Robinson should arrive at majority. Having in the previous sections disposed of the income of the estate, the mind of the testator in the tenth section came to the principal of the estate, which he here terms “the whole of my estate,” and disposes of by the partiton provided for ; but guards against an infringement of the previous sections as to income by saying, “subject to the restrictions and limitations specified in the foregoing clauses as a descent to my heirs.” The word heirs here means children, and evidently refers to the living children and the children of his deceased children named in the foregoing sections It is evident that while the writing of the will was in progress, the testator turning back to the tenth section, thought there might be some obscurity in its language, and therefore, before closing and after appointing executors, he says : “That as little obscurity as possible as to phraseology may rest upon the settlement of my estate, as provided for in this last will and testament, it is my design to invest each of my living heirs with a life estate in the income of my property, with reversion (meaning remainder) over to their heirs, as provided for above on the maturity of the youngest child of my son Alexander, when and at which time the respective' proportions of the heirs of my sons William and Alexander may be set apart and invested in them in fee.” Here he evidently referred to the provisions of the tenth section dividing his whole estate, as being intended to convey the property, that is the principal, to the heirs of the living children, and brings out distinctly the difference in his own thoughts between the income and the principal expressed by the words “whole estate.”

M IV. Acheson and IV. D. Moore, Esqrs , attorneys for plaintiff; IV. Owens jr., Iisq., attorney for defendant.

These impressions of the testator’s meaning are strengthened by the codicils. In the first he adds to the number of executors by appointing a stranger, who would be more likely to see that the provisions of the will would be executed strictly. In the second he corrects what he deemed was an error in giving to Frank P. a personal control of his share of the-income by appointing trustees to measure it out to him according to the wants of himself and his family. The third relates to a matter entirely independent, and the fourth revokes so much of the tenth section as fixed the time of the partition at the arrival of Alexander’s youngest child at majority, and goes on to say : "and that said partition may proceed and be carried out at any time. The executors and heirs may proceed to the partition thereof as though no such clause as the tenth, to which this codicil has reference, was inserted in the will aforesaid, my whole properly and estate on any partition lhe?-eof to my heirs remaining subject to the payment of the income thereof to my beloved wife during her life.” By that codicil the testator, while annulling the tenth section, evidently intended to retain so much of it as related to the partition, for he makes it operative whenever the executors and heirs should choose to proceed to make it. That this partition was to operate on the entire estate, including the principal referred to in the tenth‘section under the terms “ the whole of my estate,” is proved by the concluding clause, which makes the whole property and estate subject to the payment of the income of his wife.

This is made still clearer by reading it in connection with the clause-providing for his wife which gave to her “ all my property, estate, and effects, real, personal, and mixed, of whatsoever kind and nature and wheresoever situated at the lime of my decease, to have and to hold, to-use occupy, and enjoy the same fully, freely, and absolutely, during her life.” The :,whole property and estate” in the codicil evidently covers, the property devised to the widow for life, and is greater than it, for the devise and bequest to her are excepted out of it.

From the whole of the will and the codicils we gather the intent of the testator to give his entire estate first to his wife for life, and then to his children in equal shares absolutely and in fee, but to limit and restrict the use and enjoyment of his living children to the income until partition, and to make the concurrence of the executors necessary to determine when it would be prudent to make the partition. This control of the executors. is clearly expressed in the fourth codicil, and is the substitute for the provision in the tenth section : that partition should not be made until Alexander’s youngest child came of full age.

Judgment affirmed.

Shakswood, J , dissents.-*  