
    THE WORl) “SHARE” AS ÜSED IN A WILL.
    Common Pleas Court of Pike County.
    Ethel McDaniel et al v. Frank M. Hays. 
    
    Decided, February 3, 1905.
    
      Wills — Rules for Construction of — Meaning of the Word “Heirs”— Modification o fClauses Creating a Fee — Intention of Testator— Meaning of the Word “Share”. — Does not Include Realty Devised in Fee Simple by an Earlier Clause, When.
    
    1. Controlling principles to be followed in the construction of a will are: give effect to the intention, of the testator within the rules of law; treat the word “heirs” in its ordinary sense as a word of limitation and not of purchase; construe this word as a word of purchase only when it very clearly appears (not by conjecture) that it was used by the testator in that sense; construe a clause creating an estate in fee as modified by a subsequent clause only when the modifying clause is as clear and decisive as the one creating the fee; treat words deliberately used in a'will as there for a purpose which can not be arbitrarily ignored, and give them a meaning which’ will carry out the intention of the testator, if his intention can be ascertained and no rule of law is thereby violated.
    
      2. The word “share” does not prima facie apply to an interest in real estate, but ordinarily and naturally means a part or portion of personalty held in common by two or more persons.
    3. Where a testator specifically devised real estate in remainder in fee simple to each of his two sons in the first item of his will, and in a subsequent item devised the .rest and residue of his property, consisting largely of personalty, • equally between them share and share alike, and then immediately provided that if either of said sons should die before the decease of his wife, then the share of the deceased son should go to his heirs, the word “share” does not include the real estate devised in the first item of the will, but refers only to the property in which each son is by express words given a share.
    
      
       Affirmed by the Circuit Court without report, May 24, 1905, when it was held that the word “share” did not include the real estate devised in the first item of the will.
    
   Middleton, J.

Heard on demurrer to petition.

This cause was submitted to the court on a demurrer to the petition, the determination of which involves a construction of the will of James Wesley Hays, deceased, or more particularly speaking, Item' 3 of said will.

The first three items of said will are as follows-:

“Item 1. I give and devise to my beloved wife, Aurilla S. Hays, if she survive me, in lieu of her dower, all of my real estate wherever situate, of which I may die seized, during her natural life, or so long as she remains my widow, and all of the household goods and furniture I give and bequeath to her absolutely; the .residue of my goods and chattels which I may possess at my death, I give and bequeath to my said wife during her natural life, or so long as she remains my widow (she, however, selling so much thereof as may be sufficient to pay my just debts). At the death of my said wife, or in the event she shall again marry, or if I survive her, then at my death, I give and devise the farm on which I reside, containing one hundred and ninety-three acres more or less — being in two tracts, one of one hundred acres and the other 'ninety-three acres — to my two sons, Frank M. Hays and Isaac W. Hays, in the following manner, to-wit: the said one hundred acre tract, a part of said home farm as aforesaid, I give to my said son, Frank M. Hays, together with the right , to use the cribs and stable standing on said ninety-three acre tract, in common with his brother, Isaac W. Hays.
“The said ninety-three acre tract, being commonly known as the ‘Prather tract,’ and on which my residence stands, I give to my said son, Isaac W. Hays, subject to the use of said cribs and stable given to his brother, Frank M. Hays. I give the exclusive use to a certain granary in said cribs on said farm of ninety-three acres to my said son, Frank M. Iiays; the rights hereby given to my said' two sons, I wish them to have so long as they own said farms.
“Item 2. At the death of my said wife, or in the event she shall marry again, or if I survive her, then at my death, I give, devise and bequeath the residue of my real estate and the goods and chattels to my said sons, Frank M. Hays and Isaac W. Hays, share and share alike; however, it is my will that any and all sums of money that I have advanced to them or either of them, or that I may hereafter advance to them, or that I or my estate may be compelled to pay on account of becoming surety or security for them or either of them, shall be treated as so much money advanced to them, and, on the final settlement and distribution of my estate, the one receiving the greater amount in the way of said advancements, shall make good to the other the difference in said sums advanced, so that the amounts advanced to said sons will be equal in amounts; and the one whose duty under this will is to pay said difference is unable to do so in money or personal property, the one entitled to receive the same shall have a lien on the undivided interest in the land devised in Item 2 of this will of the one entitled to pay the same, and said lien shall remain in full force until the same is fully paid.
“Item 3. If either of my said sdns should die before the decease of my wife, then the share of said deceased son shall go to his heirs.”

The petition states that James Wesley Hays died May 16, 1895, and that on or about February 25, 1901, Isaac W. Hays, his son; sold and conveyed .to the defendant herein by warranty deed the ninety-three acre tract described in Item 1 of said' will. On June 7, 1901, Isaac W. Hays died, leaving the plaintiff, Ethel McDaniel, his widow, and the other plaintiffs, his children, as his heirs at law. The widow of James Wesley Hays, the testator, died August 27, 1904, having never remarried. It therefore appears from the petition in the case that Isaac W. Hays died before the wife of the said James Wesley Jlays.

It .is. claimed by the plaintiffs that they, áre the owners Of the ninety-three acre tract described aforesaid by virtue of the' provisions of Item '3 of the will, and that the estate' taken by Isaac W. Hays under Item 1 of the will was a defeasible estate.

It is contended by the defendant that, under Item 1 of the will,' Isaac W. Hays took an indefeasible estate in remainder in this ninety-three acre tract, and it is upon this theory the defendant files his demurrer to the petition.

Exhaustive' briefs have been filed by counsel upon both sides. The question presented is not easy of solution.

In the case of Provenchere’s Appeal, 67 Pa. St., 463, 466, Judge Sharswood says:

‘ ‘ There are no arbitrary or unbending rules in the construction of a will. No two wills are in all respects ’ alike. Where indeed the precise form of expression occurs as may have been the subject of some former adjudication unaffected by any indication of a different intention in other parts of the instrument, the courts with a view to certainty and stability of titles will follow precedent. Nevertheless the cardinal canon still holds good that the intention of the testator of each will separately is to be gathered from its four corners. Hence, almost every general rule has its recognized exceptions, with exceptions to such exceptions, which bring us back to the general rule again, and this may be, and sometimes has been carried even further in the vain attempt to generalize and classify all the decisions upon this most difficult and doubtful subject — the ascertainment of the intention from the words of a man who, in many cases, had no intention at all, the question not being present in his mind at the timé the words were used.”

I cite these remarks of Judge Sharswood because I think they are peculiarly applicable to the case before us.

We are called upon here to determine, the intention of the testator from the words he used, and it is possible that after all the actual intention of the testator may have been entirely different from that claimed by either side in this case, and it is possible that the questions urged here by both sides were not present in the mind of this testator at the time these words were used. From the great number of cases cited, including those which I have examined in my own behalf, at least five controlling principles are to be gathered, and which it can be said, without controversy, are applicable to the determination of this case.

First. The primary object in construing a will is to ascertain the intention of the testator, and to give effect to that intention within the rules of the law.

Second. The word “heir” in its ordinary sense is a word of limitation and not of purchase.

Third. While the words “heirs” may be construed as a word of purchase, and as claimed by the plaintiff in this case'- to mean “children.” this meaning can not be assigned unless it very clearly appears that it was used in that sense by the testator. Conjecture will not suffice.

Fourth. A clause in a will creating an estate in fee may be modified by the subsequent clause, but to have this effect the modifying clau'se must -be clear and decisive as that which creates the fee.

Fifth. Words deliberately used in a will are presumed to have been placed there for a purpose, and can not arbitrarily be ignored; they must be given a meaning to effect the intention of the testator, if such intention can -be ascertained and no rule of law violated.

Keeping these controlling principles in mind, let us examine . this will.

It is conceded by all parties under Item 1 of this will an absolute estate in remainder is .given to- the sons of the testator, Frank M. and Isaac W., and if this item stood alone Isaac W. Hays, rinder its provisions, owned the remainder in fee in this ninety-three acre tract.

It is contended, however, by the plaintiffs that Item 3 of the will modifies this estate, and gives it by way of executory devise to the children of Isaac W. Hays in the event his death occurred before that of the wife and mother. It must further be conceded that rail the other expressions of the testator in this will, and especially that expression in the codicil thereto in which he referred to the one hundred acre tract as the property he had specifically devised to his son, Frank M. Hays, are in complete harmony with the estate granted under Item 1 standing alone. “Specifically devised” means “separated from the rest of the estate” and it certainly appears that the testator by the use of these words had in mind at the, tipie they were used that these two tracts described in Item 1 of the will had been separated from the rest of the estate and Avere to be regarded as standing alone.

Coming bach now to the claim in this case that Item 3 modifies the interest devised in Item 1, let us examine the language in Item 3. If this item modifies in any Avay the interest which the testator gives his sons in this property under the provisions of Item 1, it must clearly appear under the foregoing principles that -the word “share,” used in this item applies to and includes the property described in Item 1, and that the AArnrd “heirs” as used in this item, Avas intended as a word of purchase; that is, >as a word intended to individuate some person or class of persons to take this property, and was not used in its ordinary legal sense.

Táking up this will by its four corners and giving due consideration to all the expressions of the testator, not only as made in Items 1 and 3, but as expressed in the codicil, I am inclined to the opinion that the Avord “share” as used in this Item 3 was not intended by the testator to apply to the property devised in Item 1, but aa’Us intended to apply and include only the property devised and bequeathed in Item 2. I reach this conclusion for the folloAving reasons:

■First. Because the word “share” is used by the tes'tator himself in designating the interest each son is to take in the property described in Item 2, and the property named in Item 2 therefore is the only property in AAdiich the -testator himself in express words gives each a share. Turner v. Balfour, 62 Conn., 91.

Second. Because Item 3 follows immediately after Item 2, and must necessarily have been in the mind of the testator at the time he disposed of the property in Item 2.

' Third. Because -the word “share” itself prima facie does not apply to an interest in real estate, but ordinarily and naturally means a part or portion of something held in common by two or more persons.

So-many authorities-have been cited in this case that. I do not-care to ball counsel’s attention .to any additional'ones save the case of Mooberry v. Marye, 8 Va., 453, as one of a class-of eases which, illustrates the second foregoing reason. In that case the testator gave to his daughters certain lands, describing them. In separate clauses .he gave them certain slaves which had been delivered to them theretofore.

The eighth separate clause of his will was as follows:

“Item 8. In case of either of my daughters’ death before they marry, that then, their parts to be equally divided among the surviving sisters.”

The language in this item indicating' that all of the interest of the daughters was to be effected by its provisions is certainly as clear as that used in Item 3 of the will under consideration; but in that case the court held -that though the wor'ds “their parts” were broad enough to cover the lands given to them, yet iit was to be confined to the slaves upon the ground that the limitations in this item being connected with .the clause having reference to slaves could not effect the devises in fee of the land, made in previous clauses.

The court says, page 463:

“After having dismissed one subject, and taken up another, he will not be construed to have resumed the former, unless his expressions to that effect be clear or unequivocal.”

However not only does this item immediately follow Item 2 of the will, but does not its language more appropriately apply to the property disposed of in Item 2? By the provisions of this item there was to be no distribution of the property therein described until after the death of the wife, and then there was to be an accounting between the two sons, and a distribution.

In the codicil of the will the testator provides for the sale of the larger part of the real estate he described in Item 2, so that from the whole, will it appears the character of the property disposed of un Item 2 was largely personalty.

Now as I have before stated, “share” more appropriately applies to an interest.in personal property than it does to an interest in real estate, and upon this the authorities are ample.

It further appears I - think from this will that It. was. the object of the testator in Item 3 to make such necessary provisions as would enable a complete administration of Ms estate without the intervention of any outside parties. He fixes a time for the distribution of the property in- Item 2 at the death of the wife.

Now it certainly must have occurred to him that perhaps a son might precede her to the great beyond; if that should occur it would result in confusion in the distribution of this property. The claim would at once be made that an administrator would have to be appointed for his son’s estate, and the settlement of his own estate would, after all, in all probability pass into the hands of a stranger.

Mr. Hays was unquestionably very earnest in his desire to avoid this. That he was trying to guard against any interference by outsiders is evidenced by the fact further that in the codicil of his will he named the attorney whom he desired to assist his executrix in settling his estate. He thus closed up every loophole through which any attack from any person not his friend, and not of his own choice, might make upon his estate.

To my mind these are conclusive reasons why this provision was made in Item 3, and why it only applies to the property disposed of in Item 1.

It is claimed, however, by counsel for plaintiffs that the main object of the testator in making the provisions contained in Item 3 was to prevent any sale by. either of the sons during the life of tké wife of the lands devised in Item 1. The best answer to tMs argument is, .that this item does not effectuate sueh' an object, if the testator tad it in' mind. Undoubtedly it wohld have been a wise provision, not only in this case, 'but in many other cases; but if .the testator had purposed that no sale of this land should be made during the life of his wife he failed to accomplish his intention in that regard in Item 3 of this will-; there is nothing in this item to prevent a sale by the heirs of a son at his death.

• "Whether or not the testator intended by using the word “heirs” to mean children of his sons, it does not become-necessary to decide if my foregoing construction of the first portion of Item 3 is correct, but I believe that after all has been said as to his intention in this regard, it still remains largely a matter of conjecture.

As before stated, in Item 1 if it stood alone each son was given an absolute estate in remainder; -all the other expressions of the testator, save and except the provisions'of Item 3, are in complete harmony with the quality of such estate.

Taking- all these matters into consideration, I call attention to the remarks of Lord Brougham in the case of ThofnMll v. Hall, 8 Bligh, 88, taken by appeal to the House of Lords, in which the question was raised of the modification, by a subsequent clause, of an estate given in fee simple by a prior clause in the will. He said:

“My lords, I hold it to be a rule that admits of no exception in the construction of written instruments, that where one interest is given, where one estate is conveyed, where one benefit is bestowed, in one part of an instrument, by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt, in order to reverse that opinion to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist, it is not sufficient that you should create a doubt, it is not sufficient that you should show a possibility, it is not even sufficient that you should deal in probabilities; but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way, and that the interest first given can not be taken away either by taciturn or by dubium of by possibile or- eVén by probabüe; but that it must be taken away, and can only be taken away, by expression et certum.”

I have undertaken to construe this will so as to give effect to every expression of the testator, but if iny construction is not sustained by the facts as they appear from the will, and as they were known to exist at the time the will was made, then, in no event, can the construction claimed by the plaintiffs be upheld.

If Item 3 means anything, it means what I have heretofore explained, .but if I am mistaken then it is void and -of no effect, because in express words it directs simply what the law itself provides and that is, that upon the death of a son his estate shall pass and descend to his heirs.

H. S. Sanderson and Post & Reid, for plaintiff.

F. E. Dougherty, L. B. Moore, J. A. Eylar and J. A.. Douglass, contra.  