
    Rutt’s Estate.
    
      Wills — Legacies—Charge on land.
    
    While the personal estate, as a general rule, is the primary fund out of which legacies are to be paid, yet the testator may direct from what part of his estate the legacies or any of them shall be paid.
    Where a testator gives all of his personal property to his wife absolutely, a power to dispose of $2,000 by will, and a life estate in his realty, and gives to another person a legacy of $600 payable after the death of his wife, and devises his real estate subject to the wife’s life estate, and subject also to the liens, legacies and bequests provided for in his will, the real estate after the death of the wife is charged with the payment of the legacy of $500 in testator’s will, and the $2,000 to appointees under the wife’s will.
    Argued Nov. 13, 1907.
    Appeal, No. 24, Oct. T., 1907, by George O. Rutt and Hettie Rutt, Administrators of the Estate of David Rutt, deceased, and George 0. Rutt, from decree of O. C. Lancaster Co., Oct. T., 1905, No. 6, dismissing exceptions to adjudication in Estate of Henry Rutt, deceased.
    Before Rice, P. J., Porter, ( Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Smith, P. J., stated the facts to be as follows:
    The essential parts of the decedent’s will are as follows:
    
      “First. Saving excepting and reserving and subject and liable to as herein after mentioned, I give devise and bequeath unto my present wife Elizabeth (her Family name Zimmerman or Carpenter) all and singular the whole of my Personal and Mixed Estate of what kind and nature whatsoever.
    “Section or Item two. I give devise and bequeath unto my wife Elizabeth during her natural life the possession, occupancy, management, control, issue, growth, products, advantages and profits of my messuage and tract of about Twenty-two acres, more or less, of land on which I now live in said Township with all the buildings and improvements thereon and the appurtenances thereunto belonging as I now hold and am the owner thereof. Adjoining the Blue Ball and Churchtown Road late Turnpike road and adjoining the Downingtown, Ephrata and Harrisburg turnpike Road and adjoining lands of my Nephew David Rutt and lands of John S. Wallace and of T. W. Wanner and of Henry Yundt and of Henry Lewis. . . .
    “ 4th. I give and bequeath unto my said wife Elizabeth the right power and authority if she survives me, by her last will and testament or any other writing under her hand and seal, legally executed, to give, bequeath, grant, bargain, sell, bestow,1 or otherwise dispose of as she may think proper the sum of Two Thousand dollars ($2000) to such person or persons as she in her own discretion may think proper and in case of default of her failing in her lifetime to make such bequest grant bargain sell or other disposition of the said sum of Two Thousand dollars or any part thereof in her lifetime then in such case, the said sum of Two Thousand dollars or the part thereof not so as aforesaid disposed of by my wife shall desent to and I give and bequeath the same unto her heirs and legal representatives in the shares and portions and according to the intestate laws of this State in operation or effect at her death as if she had died in possession thereof intestate and unmarried.
    “ 5th. My said wife Elizabeth shall have hold and be entitled • to the devises, legacies and bequests herein before made to her under and subject to, that she shall pay, all my debts funeral expenses and settlement of my Estate, and that she • shall keep and maintain all the buildings fences and improvements upon the said messuage and tract of land on which I now live in constant good order and repair and cause the land to be so cultivated as not to deteriorate or get poorer in production qualities, and my Executors and the survivor shall have and I hereby give them and him authority and control over the said messuage and premises on which I now live (bequeathed to the use of my wife as aforesaid) and to the incomes issues rents and profits thereof as much as may be necessary to carry out this direction.
    “6th. I give devise and bequeath my said lands and Real Estate and all the lands and Real Estate of which I may die seized and owner of unto my Nephews Henry H. Rutt and David Rutt Sons of my brother George Rutt, deceased, one-fourth part thereof, unto Mary Kurtz, Elizabeth Kurtz, and John Kurtz children of my Nephew John Kurtz, deceased, who was a son of my Sister Elizabeth Kurtz, deceased, and widow of Samuel Kurtz, shall have one-fourth part thereof, unto Mary Rutt (single woman, one-fourth part thereof, unto Nancy widow of William Lichty one-fourth part thereof, as tenants in common to his and their respective heirs and assigns under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as herein-before and hereinafter made. ...
    “8th. I give and devise unto the said Lizzie A. Wanner, if she should be living at the time of the death of my said wife the sum of Five Hundred dollars to be paid to her in one year after my wife’s death and if the said Lizzie A. Wanner should be dead at the time of the death of my wife, then to be paid the said legacy unto her heirs and assigns.”
    Exceptions have been filed to the awards of $2,000 to the executor of the will of Elizabeth Eby, who had been Elizabeth Rutt, the testator’s widow, and $500 to Lizzie A. Wanner. “The testator’s intentions are not involved or obscure. They have been clearly expressed. In direct and comprehensive language he gave his whole personal and mixed estate to his wife, subject to the payment of “all my debts funeral expenses and settlement of my Estate.” He died more than thirty years ago and his debts and the expenses consequent upon his funeral and the settlement of his estate have long since been paid. Excepting the real estate this bequest exhausted his estate. All had been given to his wife — the first and natural object of his bounty. The burden of the exceptants’ argument was that the personal estate is the primary fund out of which to pay legacies. Of course it is. No one pretends to dispute this general proposition. But a testator may direct otherwise if he chooses, and this one did. “The only legacy to take effect immediately after his death was not only paid out of, but was the personal estate.” Had the testator said or done nothing more than bequeath the $500 and give his widow power to bequeath $2,000, the irresistible implication would have been that he intended these sums to be charged on the real estate. There was nothing else out of which they could be paid, but he left nothing to be implied. I'n direct and positive words he charged the real estate with these legacies. After devising to the remainder-men, he says:
    “ Under and subject nevertheless to the rights of occupancy and possession and the Rents Issues and profits thereof unto my wife during her life as hereinbefore devised and bequeathed to her and subject and liable also to the liens legacies and bequests and payments to be made therefrom and thereout as hereinbefore and hereinafter made.”
    The liens, legacies, bequests and payments to be made therefrom and thereout — from and out of the real estate— are these for $2,000 and $500. There are no others. The one for $2,000 had been “hereinbefore” made and the one for $500 was “hereinafter made.” There is no uncertainty as to his meaning or the meaning of his words.
    Exceptions are dismissed and the adjudication is confirmed absolutely.
    
      Error assigned was in dismissing exceptions to adjudication.
    
      B. F. Davis, with him 8. R. Weaver, for appellants.
    — The charge on the lands in the will was merely an additional security for the payment of a legacy to the widow or her heirs or legatees, in case the personal estate was insufficient: Smith v. Davis, 1 Grant’s Cases, 158; Muhlenberg’s App., 103 Pa. 587; Keeler v. Wood, 30 Vt. 242; Dewitt v. Yates, 10 Johnson’s Rep. (N. Y.) 156; Kendig v. Landis, 135 Pa. 612; Breden v. Gilliland, 67 Pa. 34; Eavenson’s App., 84 Pa. 172; Riegelman’s Est., 174 Pa. 476; Mann’s App., 14 Atl. Repr. 270; Walker v. Hardwick, 1 Mylne & Keene, 396.
    February 28, 1908:
    
      W. H. Keller, of Coyle & Keller, with him A. W. Snader, for appellees.
    — The legacies were charged on the land: Clery’s App., 35 Pa. 54; Hershey’s Est., 21 Pa. Superior Ct. 651; Swuope’s App., 27 Pa. 58; Tower’s Appropriation, 9 Watts & Sergeant, 103.
    An absolute gift will not be cut down or diminished except by clear language, showing unequivocally an intention to cut down the quantum of the estate: Snyder v. Baer, 114 Pa. 278; Levy’s Est., 153 Pa. 174; Good v. Fichthorn, 144 Pa. 287; Gillmer v. Daix, 141 Pa. 505; Coles v. Ayres, 156 Pa. 197; Schuldt v. Herbine, 3 Pa. Superior Ct. 65; Yost v. Ins. Co., 179 Pa. 381; Sharpless’s Est., 209 Pa. 409.
    And the effect of the exception or reducing clause will not be extended beyond the clear intent of its language: Sharpless’s Est., 209 Pa. 409; Hiestand v. Meyer, 150 Pa. 501; Good v. Fichthorn, 144 Pa. 287.
   Opinion by

Henderson, J.,

The question for our determination is whether the bequests provided for in the fourth and eighth paragraphs of the will of Henry Rutt are payable out of the decedent’s real estate. That they are a charge on the land is clearly apparent from a consideration of the sixth paragraph of the will and seems to be conceded in-the argument of the appellants’ counsel. It is contended, however, that they are first payable out of the personal estate and if that is not sufficient that the balance is payable out of the real estate, and that the charge on the land is only an additional security to the legatees. The general proposition that the personal estate is the primary fund out of which legacies are paid is not open to debate, but it is equally well established that a testator may direct from what part of his estate the legacies or any of them shall be paid. An examination of the will under consideration makes it apparent that the testator gave to his wife all of his personal estate, out of which she was required to pay the decedent’s debts, his funeral expenses and the cost of the settlement of his estate. There is no ambiguity or obscurity in the first paragraph of the will when read in connection with the fifth. The first paragraph is in these words: “Saving excepting and reserving and subject and liable to as herein after mentioned, I give devise and bequeath unto my present wife Elizabeth (her Family name Zimmerman or Carpenter) all and singular the whole of my Personal and Mixed Estate of what kind and nature whatsoever.” In the next paragraph the testator gave to his wife a fife estate in the real estate therein described. In the third paragraph she was given the right to cut firewood and timber for repairs from another piece of real estate. Then in the fifth it was provided that the devises, legacies and bequests made to her were conditioned that she pay all debts, funeral expenses' and the costs of settlement of the estate. The “saving, excepting and reserving” clause of the first paragraph must be read in connection with the requirements of the fifth paragraph in" order to make the will reasonable and consistent. The clause referred to has no reference to the provisions of the fourth and eighth paragraphs. The fourth paragraph merely gives to the testator’s wife a power of appointment as to a portion of his estate. It does not make a gift to her and has no reference to that part of his estate given to his wife in the first paragraph. As to the latter, she had absolute control because it was her own property and the provision in regard to the $2,000 must necessarily relate to a part of the testator’s estate not disposed of by other provisions of the will. The interpretation contended for by the appellants would require us to hold that the testator gave to his wife all of his personal estate and at the same time intentionally charged it with the payment of legacies which might equal the amount of the bequest to her. Moreover, the bequest in the eighth paragraph was not payable until after the death of the decedent’s wife and that provided for in the fourth paragraph might not become payable until after her death and in fact did not become payable until after that event. There is no intimation in the language of the-first paragraph that the wife was to have less than an absolute estate. No provision is made for safeguarding the property or any requirement that security be given that it be produced to satisfy any future demand. The testator was childless and we may properly assume that his wife was the first object of his care. There is an intention expressed to make an absolute gift of the personal estate and this cannot be cut down except by language which shows a clear intention to diminish the interest: Yost v. Ins. Co., 179 Pa. 381; Sharpless’s Estate, 209 Pa. 409.

There is the further objection to the position of the appellants, that the testator expressly directed in the sixth paragraph of his will that the legacies and bequests should not only be a charge upon his land, but should be payable “ therefrom and thereout.” This can only refer to the legacies provided for in the fourth and eighth paragraphs. All of the personal estate was given to the wife. Nothing remained for division or distribution except the real estate devised as provided in the sixth paragraph. The testator was aware that out of this must come the fund given in the fourth paragraph and that is the bequest to which reference is made in the sixth paragraph as “ hereinbefore ” made. He also knew that the legacy of $500 payable to Lizzie A. Wanner must come from the same source and it is obviously the bequest to which he referred in the sixth paragraph as “hereinafter” made. The intention to charge the real estate with the payment of these legacies is much more clearly expressed than was that in Swoope’s Appeal, 27 Pa. 58; Clery’s Appeal, 35 Pa. 54, and Hershey’s Estate, 21 Pa. Superior Ct. 651; in all of which it was held that the legacies were payable out of the real estate.

The widow of the testator made a will in which she disposed of all of her personal estate. This, under the third section of the Act of June 4,1879, P. L. 88, was an exercise of the power of appointment contained in the will and entitled her executor to the bequest of $2,000 to be distributed as directed by her.

The foregoing interpretation of the will gives consistency to the whole and is in harmony with the adjudicated cases.

The decree is affirmed.  