
    Crick’s Estate.
    
      Wills — Construction—Evidence—Surrounding circumstances.
    
    In construing a will all the surrounding circumstances of a testator, his family, the amount and character of his property, may and ought to be taken into consideration.
    A testator executed his will when he was about sixty-three years of age, an invalid in health, and after he had lived for many years alone in domestic confidence with his wife, who was three years his junior. They had no children, were mutually dependent upon each other and had united their savings. The title to the home in which they lived was in the wife’s name; that of another house and lot was in the husband’s name, and a third was in their joint names. In addition to these he owned interest bearing securities to the amount of several thousand dollars. With a scant knowledge of the technical use of words and legal phrases he made a will by which he provided first for the maintenance of his wife by giving to her the entire income of his estate with the right to draw on the principal if necessary. He further directed as follows: “ If my wife shall sell her house and lot in her lifetime, or her executor sell it after her death, whatever amount it may bring when sold, the same amount I want taken of the principal and set aside for my relations on my side of the house.” He then provided that the remainder should “ be equally divided between my wife and myself, each having the right to do with the half by bequest as they see fit.” The wife survived the testator, and died without having sold her house and lot. The orphans’ court ascertained the value of the wife’s house and lot, awarded an equal amount of testator’s funds to his relatives, and awarded the remainder equally between the estates of the testator and his wife. Held, that the'distribution was proper.
    Argued May 21, 1907.
    Appeal, No. 182, April T., 1907, by . .ay Twining, from decree of O. C. Venango Co., Nov. T., 1904, No. 22, sustaining exceptions to auditor’s first report and dismissing exceptions to second report, in Estate of David Crick, deceased.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Thomas McGough, Esq., auditor.
    Criswell, P. J., filed the following opinion:
    David Crick died November 2, 1893, testate, leaving to survive him no children, but a widow, Elizabeth Crick, and collateral relatives, and an estate, personal and real, amounting to something over $7,000. The real estate consisted of a house and lot in Oil City, sold by his administrator for $1,000. His wife, Elizabeth, also owned a house and lot in her own right, and still another house and lot in the city was owned by both, having been conveyed to them jointly. Elizabeth survived her husband, dying testate, 190 , and by virtue of such survivorship acquired title to the whole of the latter lot in fee.
    Apparently, as we gather from the crude language of the will, David Crick, the testator first mentioned, desired, after providing for the maintenance of his wife during life, that such property as he and his wife owned should, after her decease, be equally divided between his own and his wife’s collateral relatives. With this object in view he provided first for her maintenance by giving to her the entire income of his estate, with the right, in case it should be necessary, to draw on the principal. In order to effect such equal distribution of their joint property, he provides as follows, viz: “If my wife, Elizabeth Crick, shall sell her house and lot in Oil City, in her lifetime or her executor sell it after her death, whatever amount it may bring when sold, the same amount I want taken of the principle and set aside for my relations on my side of the house.” He then provides that the. balance, after all expenses of settling the estate are paid,' shall" be equally divided between his wife and himself. “Each having the right to do with the half by bequest as they see fit.” Then follows a disposition of “my estate” (evidently meaning thereby the portion not bequeathed to his wife or otherwise disposed of) among his collateral kindred.
    Before the auditor, David’s kindred and legatees and his wife’s differed as to their rights under these provisions of the will, David’s claiming that a sale of her lot, either by herself or her executor, was a condition precedent to her acquiring one-half of or any interest in the estate, except such as she acquired under the clause giving her the use of it for life, while the executrix of Elizabeth denied this contention and claimed the full one-half of the estate remaining at her death after deducting expenses and special bequests. The auditor adopted the latter view and reported a distribution accordingly. To this report the kindred and legatees of David have, through their counsel, filed' exceptions and thus a question is raised as to the proper construction of the will.
    It is elementary law that in the construction of wills the intent of the testator is to govern, and, except in cases of latent ambiguities, the intent is to.be gathered from the language of the testator as contained in the will, it being proper in all cases to take into consideration the family, character and amount of the estate of the testator. Each part of it is to be considered in connection with every other part and all are to be reconciled and given effect if possible.
    A consideration of this will as a whole, in our opinion, fairly discloses the intent indicated. It is disclosed by his express direction that the value of her lot, the proceeds of which when sold he naturally anticipated would go to her relatives, should be offset by setting aside an equal amount out of his estate for his relatives .on his side of the house, and by the division of the balance equally between himself and his wife. This latter provision, standing alone in so far as it relates to himself, is, of course, absurd, as a man cannot be his own legatee. This was, however, but the testator’s way of expressing his intent that one part of the estate was to be disposed of by himself, 'while the other was to go to and be disposed of by his wife.
    Having in view the purpose indicated, to effect an equal division of their joint property between his own and his wife’s kindred, is the contention of either of the parties to the controversy now before the court such as to so operate? One would deprive the wife’s kindred of all interest in the testator’s estate, while the other would give the wife’s kindred all of her estate and one-half of her husband’s. If an intent otherwise be manifest, as we have indicated, a result more nearly in harmony therewith should be reached.
    The point of divergence in the will is that relating to the sale or disposition of the wife’s house and lot. Adhering to the letter of this provision, it was a sale of the lot which was to affect the distribution. But, reviewing the will as a whole, was this the thought of the testator? Did it make any difference to him whether either his wife or her executor sold the property or she disposed of it by will? Why should the manner in which she should see proper to dispose of her own lot affect the distribution of his estate? Manifestly he was not concerned as to this, but what he had in mind was that an amount equal to the value of her lot when disposed of for the benefit of her relatives should be taken from the principal of his estate and set apart for his relatives in order that hers might not receive an undue portion of the estate and property which they both had. Being a layman, unskilled in the preparation of such papers and unfamiliar with the different methods of transferring estates, he appears to have assumed that necessarily her house and lot would have to be sold by her during her lifetime or by her executor after her death. But there were other methods of disposing of the property and she saw proper to resort to one of them. She disposed of it by will. Did her husband intend that if she resorted to this method no deduction should be made on account of its value from the amount of his estate for the benefit of his relatives, or that by her so doing her relatives should receive no part of his estate? Such conclusions are not tenable from any standpoint of reason. They ignore the prime intent of the testator and result, beyond any reasonable doubt, in a disposition of his estate never contemplated by him..
    The rule of construction of wills, when inapt words have been used to express the intention of the testator, is well stated by Thompson, J., in McKeehan v. Wilson, 53 Pa. 76: “ It is a cardinal rule in the construction of wills that the intention of the testator as developed by the will shall control. If this were not true, the paper would not be the will of the decedent. It sometimes happens, however, that through ignorance or the mistake or the testator or drawer of a-will words are omitted or inserted which have left unexpressed or wrongfully expressed, what clearly appears to have been the intention of the devisor from the whole tenor of the will, and which are necessary to carry it out. The rule in such cases is well settled that the courts will permit the will to be read as if .the words omitted were inserted and those wrongfully inserted were omitted, and in the place or places where they were intended to have been inserted or omitted.” There are numerous instances of the application of this rule where “and” has been read as “or,” “any,” as “all,” etc. The word “inherited,” having reference to land, has been construed to apply to lands devised or conveyed, while a presumption in favor of the technical use of technical words will always be sacrificed in favor of the general intent: DeKay v. Irving, 5 Den. 646.
    While the word “sell” was used by the testator in connection with his reference to the transfer of his wife’s house and lot it appears clear that what he intended to cover and include was such or whatever disposition should be made of the same, and that when disposed of an amount equal to the value thereof should be set apart out of his estate for his relatives, and as the word “sell” approximates the meaning of the words “dispose of, ” there would be no radical departure from the text by making the substitution. The word “sell” is defined by Blackstone as “a transmutation of property from one to another in consideration of some price or recompense in value,” while almost anything answers for a consideration, price or recompense in value.
    But it is said the clause under consideration begins with the word “if” and it implies a condition precedent. This, it may be conceded, is generally true, when it is not controlled by other words, but is not always true. Frequently it is used instead of “whether,” which is one of its meanings recognized by the authorities. Giving to it this signification and maldng the slight modification above indicated the sentence would read “Whether my wife Elizabeth shall dispose of her house and lot in Oil City in her lifetime or her executor dispose of it after her death whatever amount it may bring when disposed of, the same amount I want taken of the principel and set aside for my relations on my side of the house.” Assuming this to be a proper expression of the testator’s intent as we believe and conclude it is it would follow reasonably that the disposition of the lot which he contemplated was to. be one at its fair value. Assuredly he did not mean that his wife might sell or otherwise dispose of it for $1.00 or for nothing and that only a corresponding amount should be set aside from his estate for his relatives. Upon purely equitable grounds this position appears likewise to be sustainable. The orphans’ court is a court of equity. “Equity always seeks for the real intent under cover of whatever forms and appearances, and will give effect to such intent unless prevented by some positive and mandatory rule of law:” Pomeroy’s Eq. Jur. 378. “It will in no case permit, the veil of form to hide the true effect or intention of the transaction:” Eaton’s Equity, 81. “Equity will disregard names and penetrate disguises, to get at the substance underneath: ” Stockton v. Railroad Co., 50 N. J. Eq. 52. A familiar instance of the application of the rule is that of the common mortgage, which though in form an absolute conveyance, in case of default of payment, it is nevertheless held to be only a pledge or security.
    The legal representative of Elizabeth Crick stands on no better or different grounds as a claimant than would Elizabeth herself. Would equity permit her, with knowledge of the provision of the will, to disappoint her husband’s beneficiaries, by adopting another method of disposing of her property than that expressed in or contemplated by the will, for the purpose of augmenting her estate? The maxim that “he who comes into equity must come with clean hands,” would appear, at least, to forbid such reprehensible conduct. On the other hand, is it possible that the fact that she ignorantly or negligently devised her hpuse and lot instead of selling it should have the effect of depriving her kindred and beneficiaries of all interest in her husband’s estate?
    The conclusion therefore is reached that an amount equal to the value of Elizabeth Crick’s house and lot at the time of her decease should first be deducted from the amount of David’s estate available for distribution and the representative of Elizabeth’s estate should be awarded the one-half only of the balance, while the whole of the remaining part of it should be awarded to his remaining legatees. This necessitates a finding by the auditor as to the value of the house and lot at the time indicated, which can probably be done satisfactorily from the evidence heretofore taken or offered before the auditor, provided there be no legal objection thereto.
    Upon the case being referred back to the auditor he filed a second report in which he found the value of Mrs. Crick’s house to be $2,000. He deducted this from the balance for distribution, and distributed the remainder, one-half to the administratrix of Mrs. Crick, and the remainder to Mr. Crick’s legatees.
    Exceptions to the second report were dismissed.
    
      Errors assigned were in dismissing exceptions to auditor’s second report.
    
      H. J. Muse, with him R. F. Glenn, for appellant.
    
      J. D. Trax, with him Wm. M. Parker, for appellee.
    
      November 18, 1907:
   Opinion by

Orlady, J.,

In Postlethwaite’s Appeal, 68 Pa. 477, it was said: “It has been long and well settled, and indeed it is a principle so consonant to reason, that the only wonder is that it should ever have been questioned, that all the surrounding circumstances of a testator, his family, the amount and character of his property, may and ought to be taken into consideration in giving a construction to the provisions of his will:” Follweiler’s Appeal, 102 Pa. 581; McKeehan v. Wilson, 53 Pa. 74.

When David Crick executed his will he was about sixty-three years of age, an invalid in health and for many years had lived in domestic confidence with his wife, who was three years his junior. They had no children and were mutually dependent upon each other. They united their savings in accumulating the property involved in this contest. The title to the home in which they lived was in the wife’s name; that of another house and lot was in the husband’s name, and a third was in their joint names. In addition to these he owned interest bearing securities of the value of $5,600. With a scant knowledge of the technical use of words and legal phrases, he disposed of this property by a will written by himself. In considering the will thus prepared, despite his inapt use or misuse of words in some instances, it indicates as clearly as would be expected from a person so situated, that his estate should be distributed in the manner determined by the court below. The essential facts are not in dispute and, as said in Roberjot v. Mazurie, 14 S. & R. 42, “No other man’s will can guide us in the construction of this man’s will,” we feel that the result reached is as nearly the true one as we can make it. An extended discussion would not add to what has been submitted in the opinion of the court below in which the governing principles are rightly applied.

The decree is affirmed.  