
    Geisinger’s Appeal. [Mesner’s Estate.]
    A testator, after bequeathing §2,000 to a sister’s children, his only heirs at law, directed “ as to the residue of my estate, my will is, that the same shall remain in my name during the life of my widow, if she survives me; if she should die before me, my will is, and I give and bequeath the same in three equal shares,” to three persons, naming them, who were strangers to his blood. The widow survived and elected to take against the will. Held, that the testator died intestate as to the residue of his estate, and that it was properly awarded to his heirs at law.
    An heir can be disinherited only by express devise or by necessary implication.
    It was held by the court below that an auditor’s fee of §300 for twenty days’ services was not too much.
    
      March 14, 1889.
    Appeal, No. 76, Jan. T. 1889, of Noah Geisinger, et al., residuary legatees, from a decree of O. P. Northampton Co., dismissing their exceptions to an auditor’s report, distributing the estate of Frederick Mesner, deceased. Green and Clark, JJ., absent.
    H. J. Steele, Esq., appointed auditor to distribute, found, inter alia, the following facts:
    Frederick Mesner died in 1886, leaving a will, the material parts of wrhich are as follows:
    “ Item. I give and bequeath the sum of two thousand dollars unto the children of my late sister, Caroline Scholl, to be divided equal among her seven children, if one or more of them should be dead at my decease, then the children of such deceased shall have father or mother’s share, the said sum to be paid after my decease as soon as can be done.
    “ Item. As to the residue of my estate, my will is, that the same shall remain in my name during the life of my widow, if she survives me; if she, my beloved wife, should die before me, my will is, and I give and bequeath the same in three equal shares, one share of the three to Isaac Geissinger, his heirs; and one other third to the children of Daniel Geissinger, and one other third to the children of Peter Moyer, deceased. Should any of the said legatees be dead, as Daniel Moyer now is, the children of such deceased shall have father or mother’s share.
    “And lastly, I nominate and appoint John G. Moyer and Noah Geissinger to be the executors of this, my last will and testament, and I further empower my said executors to do and perform all things appertaining to my estate.”
    The testator had no lineal descendants, and the children of his sister Caroline were his only heirs-at-law. The widow survived her husband and elected to take against his will. The estate was wholly personalty.
    The auditor found that the testator died intestate as to the residue of his estate and awarded the same to his heirs-at-law, the children of Caroline Scholl.
    The following exceptions were filed by the appellants, the residuary legatees, to the auditor’s report:
    “ 1. The auditor erred in deciding that, inasmuch as Yeronica Mesner, the wife of Frederick Mesner, the decedent, survived her husband, the said Frederick Mesner died intestate as to his residuary estate after the death of his widow, who by his will had a life estate in said residue.”
    “ 2. The auditor erred in awarding the one equal one-half of the residuary estate of the decedent to his next of kin, to wit, to the children of his sister, Caroline Scholl, deceased, under the intestate laws of this state, [naming them].”
    “ 3. The auditor erred in not awarding the one equal one-half of the residuary estate of the decedent to the residuary legatees and exceptants, [naming them].”
    
      “ 4. As to the residue of the decedent’s estate, the will provides as follows: [quoting the residuary clause]. The auditor erred in deciding that the foregoing bequest of the residue of his estate was a conditional one, depending on the contingency that the testator survived his wife, but as the wife of the testator survived him, the bequest became ineffectual, and he died intestate to that extent after the death of his widow.”
    The court dismissed the exceptions, in the following opinion, by Schuyler, P. J.:
    “ This controversy arises under the. last will and testament of the decedent, of which, omitting the formal parts, the following is a complete copy: [quoting the clauses of the will above stated].
    “ The widow of the decedent survived him. The decedent left no lineal descendants, and his only next of kin are the children of Caroline, Scholl, named in the will as legatees of the $2,000. Isaac Geisinger and his co-legatees are the widow’s next of kin, among whom are the two executors. The estáte left by the decedent was-worth $13,000, and consisted wholly of personal property. The widow elected not to take under the will, and her share under the intestate laws was set aside to her. The present controversy is over the residue of the estate left after deducting the $2,000 legacy, and the share set aside to the widow under the intestate laws. Before the auditor, this residue was claimed by Isaac G-eisinger and his co-legatees, but the learned auditor disregarded the claim, and distributed the residue to the decedent’s next of kin, which is complained of as error. It will be noticed that the contest is between strangers in blood to the decedent, on one hand, and persons standing in the relation of his heirs, should it turn out that the decedent died intestate as to the residue in controversy, on the other.
    
      “ ‘ The maxim is imbedded in the common law that an heir can be disinherited only by express devise, or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed. That this rule has been uniformly recognized in Pennsylvania, is proved by all the cases in which the point has been discussed.’ Rupp v. Eberly, 79 Pa. 144. To the same effect is Brendlinger v. Brendlinger, 26 Pa. 132, where Lowrie, J., says: ‘He who does not claim by descent must show a written title to himself. No intention in his favor can avail him that is not expressed in the written will. If the expressed intention is inadequate for his purpose, the law of the land and the title of the heirs must prevail, and all doubts about its adequacy must operate to his prejudice.’ "Whether the subject of controversy be realty or personalty, the same rule applies. Beadley’s Est., 17 Phila. 475.
    
      “ There is another principle of great value, and of frequent application in controversies over wills, and that is, that where the language of the will is plain and unambiguous there is no room for construction. This principle is well illustrated in Still v. Spear, 45 Pa. 168, where the controversy was over the following clause in the will of Charles Still, Sr., deceased: £ The share coming to my son Levi, I bequeath in trust to my friend John H. Latshaw, he to-hold the same and pay the interest, at his discretion, to my son Levi, for his maintenance and support; said yearly interest not to be subject to the debts and liabilities of the said Levi, and in case the said Levi should die without leaving issue, the principal sum I order to be paid to the children of my son Charles, and charged in a book against each and be deducted from their respective shares.’ Levi’s-interest under this clause was attached by his creditors, and the question was whether this interest amounted to an absolute gift, or merely to a spendthrift trust. The court below held that it amounted to an absolute gift, but the supreme court held otherwise in an opinion by Strong, J., from which the following extract is taken: £ The construction given by the court below to the will of Charles Still, Sr., plainly defeats the general intentions of the testator, and this without any necessity, for those intentions are not in conflict with any rule of law, or with any policy which the law does not tolerate. There are certain principles, it is admitted, which are intended to assist in ascertaining a testator’s intention, and which are controlling when that intention is doubtful. They have been invoked to sustain this judgment. Among them are the maxims that the first taker of a legacy is presumed to be the chief object of a- testator’s bounty; that in doubtful cases legacies are to be held vested, rather than contingent; absolute rather • than defeasible; that the- law favors such a construction as will render estates alienable, and that the primary intent is to be regarded rather than the secondary, if both cannot prevail. But these principles shed no light upon the will now before us. They are only applicable in cases of doubtful construction. They are never allowed to defeat a plain intent expressed. The purposes of the testator in this will are not obscure. That he did not intend Levi Still to have any share of his estate absolutely; that he did not intend to expose any part of it to seizure at the suit of Levi’s creditors; and that he did intend a benefit to the children of Charles Still on the happening of an anticipated contingency, would be very plain to every common mind. It is only when refinement commences that doubts arise.’ To the same effect is Middleton’s Appeal, 103 Pa. 94.
    “As in Still v. Spear, so here, £ it is only when refinement commences that doubts arise.’ To the lay mind, it might be uncertain what, if any, estate in the residue the widow took under the will, but it is agreed on all hands that 'she took at least a life estate. "With this uncertainty out of the way, the will becomes a model of brevity, simplicity and perspicuity. The testator gives to his nephews and nieces a legacy of $2,000. The residue of his estate he gives to his wife for life, and, if she should die before the testator, then he gives the residue to the exceptants. That is all. There are no double contingencies, cross limitations or other provisions in the will from which to deduce a general intent at variance with the particular intent expressed, and, in this material respect, the present case differs from all those cited by the learned counsel for the exceptants. The bequest to the exceptants stands alone, wholly uninfluenced by the other parts of the will. It does not depend for its efficacy upon the previous estate given to the wife, for it would have been equally good as an executory bequest, without a previous estate to support it. £ If she, my beloved wife, ■should die before methese are the words of the testator, and they indicate so clearly the one event, on the happening of which the exceptants are to take the residue, that the merest child cannot mistake their meaning. No matter what becomes of the residue, should the wife survive the testator, one thing is certain, and that is that the exceptants are to have it only in the event that the testator’s wife died before him. Upon that subject, there can be no room for two opinions, if the language used by the testator is to be taken in its ordinary, proper and grammatical sense. And why should it not be so taken ?
    “ The first reason urged by the learned counsel for the except-ants, why the will should not be read literally, is, that such a reading makes the testator die intestate as to the residue, and he refers to numerous authorities to the effect that a testator will not be presumed to die intestate. That such is the rule there can be no doubt, but its applicability to the will in hand is not so clear. Here there is no room for presumption, for the fact of intestacy is plainly apparent on the face of the will itself. In other words, the rule under consideration belongs to the class of maxims referred to by Judge Strong in Still v. Spear, supra, which ‘are only applicable in cases ■of doubtful construction.’ Another reason urged for a departure from a literal reading of the will is that the bequest to exceptants, as it stands, is an absurdity. I am not so sure that the bequest i as absurd as the learned counsel for exceptants seems to think, but, assuming it to bé so, what then ? The rale as to absurdity, like the rule as to intestacy, is but a rule of construction, and can have no application where the meaning of the testator is clear. It is no objection to a will that it does not dispose of the whole of the testator’s estate. The books are full of instances in which such wills have been sustained. Nor is it any objection to a bequest that it is made to depend for its efficacy upon a condition that is seemingly absurd and capricious. This is especially true where, as here, the objects of the testator’s bounty are strangers to his blood. The property of a testator is his own and he may give it to whom and as he píeases, no law being violated. And the rule both as to intestacy and as to absurdity amounts to only this, that where the language of a will, taken as a whole, is capable of two constructions, but one of which tends either to intestacy or absurdity, that construction is .to be preferred which does not so tend.
    “ Many cases were cited at the argument by the learned counsel for the exceptants in which the court has regarded a clause of apparent condition as a clause of conditional limitation, so as not to require, as in the case of a gift on a condition, that the very event, on which the gift is made contingent, must he fulfilled with strict exactness. I have examined such of these cases as I have had access to with sufficient care to enable me to say with confidence that they turn upon the presumed intention of the testator as gathered from the context of the will. I fail to discover in the present will the slightest evidence of an intention on the part of the testator that the exceptants should have the residue of his estate upon any other contingency than the one expressly named. True, he makes two of the exceptants his executors, but this is accounted for by the admitted fact that his own nephews and nieces lived in distant parts of the state. It is also true that the testator makes careful provision against the lapsing of the legacy to the exceptants, but that is more than offset by the fact that he makes the same careful provisions against the lapsing of the $2,000 legacy, though in the latter case it was wholly unnecessary, owing to the Act of Assembly.
    “ It would extend this opinion to an inordinate length to take up in detail the numerous cases cited on behalf of the exceptants in which a clause of apparent condition has been construed to be a clause of conditional limitation, and to point out wherein each case differs from the case in hand. It has been well said that ‘ a case upon a will has no brother,’ and the saying is well illustrated by the citations just referred to. In this connection, the language of Chancellor Kent, in speaking of the construction of wills, will be found pertinent: ‘ The attempt to examine cases at large on this subject,’ says that great authority, ‘ would be impracticable, from the incalculable number of them; and, though we are not to disregard the authority of decisions even as to the interpretation of wills, yet it is certain that the construction of them is so much governed by the language, arrangement and circumstances of each particular instrument, that adjudged cases become of less authority, and are of more hazardous application, than decisions upon any other branch of the law.’
    
      “ The conclusion reached by the learned auditor has the double virtue that it imputes to the testator the very meaning which his language expresses, and gives the residue of his estate to his heirs, rather than to strangers. This is strong ground. Mr. Hawkins, in the preface to his admirable treatise on Wills, says that there are some rules of construction which ‘ are much stronger than others and require a greater force of intention in the context to control them.’ Certainly there are no stronger rules of construction than that a will is to be read in the ordinary and grammatical sense of the words, and that heirs are to be preferred to strangers. It is true, as is also said by Mr. Hawkins, in his preface, that ‘ a rule of construction always contains the saving clause — unless a contrary intention appear by the will.’ But, as already indicated, there is nothing in the present will to show that the testator intended to disinherit his heirs, except in the one event which never happened.
    
      “ If we are right in holding, as we do, that the heirs are entitled to the residue, then the exceptants have no standing in court to ■question the propriety of the fee charged by the auditor; but as the supreme court may reach a different conclusion, the exception that the auditor’s fee is excessive must be disposed of: The auditor was appointed on the nomination of all the parties in interest. The selection was made with full knowledge of the nice and difficult questions that would arise, and, it is fair to presume, with especial reference to the admitted qualifications of the person selected to grapple with these questions. The brief submitted to the auditor, on behalf of the exceptants, contained forty closely written pages of large legal cap, and considerably over a hundred citations of authorities. The brief was prepared by a master in his profession, and was well calculated to carry conviction. The learned auditor gives his assurance, and we have no reason to doubt his word, that, including the time necessarily occupied in the preparation of his report, he was employed more than twenty full days in connection with the audit. Under the circumstances, we are not prepared to say that the fee of $300, charged by the auditor, is too large.
    “1888, November 19. Exceptions dismissed.”
    
      The assignments of error specified, 1, the action of the court in dismissing the exceptions, filed by appellants, to the auditor’s report, and in their decree, awarding one-half of the residuary estate to the children of Caroline Scholl, deceased; 2, in not sustaining said exceptions to the auditor’s report, and not making a decree awarding the one-half of the residuary estate to the residuary legatees (other than testator’s widow) named in his will; 3, in confirming absolutely the auditor’s report; 4, in deciding that the bequest to the said residuary legatees (other than the widow) was a conditional one, depending on the death of testator’s widow before him, and as the said widow, who had but a life estate in the residuary estate, survived the testator, and her estate went into effect, the said bequest over failed and the testator, upon the death of the widow, •as to said residuary estate, died intestate; 5, in allowing, as auditor’s fees, the sum of three hundred dollars. After the printing of the paper books, the appellants assigned as additional errors, 6-9, the action of the court in dismissing the exceptions to the auditor’s .report, quoting them.
    
      O. H. Meyers, with him Richard Watson, for appellants.
    A person who executes a will is presumed to intend to dispose of his whole property. Holfius v. Holfius, 92 Pa. 307; Ferry’s Ap., 102 Pa. 207; Rhorer v. Stehman, 1 Watts, 446; Raudenbach’s Ap., 87 Pa. 51; Board of Mission’s Ap., 91 Pa. 507; Boyd v. Latham, Bushee, N. C., 365; Gourley v. Thompson, 2 Sneed, 387; Leigh v. Savidge, 1 McCarter, 124; Booth v. Booth, 4 Ves. Jr. 407.
    The general intent of a will should prevail. Findlay v. Riddle, 3 Bin. 150; Hitchcock v. Hitchcock, 35 Pa. 393; Middleswarth v. Blackmore, 74 Pa. 414; Schott’s Est., 78 Pa. 40; Ferry’s Ap., 102 Pa. 210; English v. Harvey, 2 Rawle, 305; Shreiner’s Ap., 53 Pa. 108; Key v. Key, 4 DeG., M. & G. 73; Grey v. Pearson, 6 H. of L. Cas. 61; Towns v. Wentworth, 11 Moore P. C. 526; Wilkinson v. Adam, 1 V. & B. 466; Coryton v. Hilyar, 2 Cox, 340; Baker v. Reilly, 16 Ind. 479; McConey’s Exr. v. Leek, 1 McCarter, N. J., 70; Brummel v. Prothers, 3 Ves. Jr. 113, note 3; Kane v. Astor, 5 Sanford, 467; Booth v. Booth, 4 Ves. Jr. 408; Constantine v. Constantine, 6 Ves. Jr. 102.
    The bequest of the residue to appellants is not a bequest upon condition, but is in the nature of a conditional limitation by construction, and'though by the letter of the will they were entitled to ,said residue at once upon the death of the testator, if he survived his wife; but, as the will, antecedently to said bequest to them, bequeathed a life estate in said residue to his wife, if she survived the testator, the said bequest of the residue to the above parties, is to be construed by implication as subject to said life estate, and •especially in the absence of any limitation over after the death of the widow, if she survived the testator. 2 Redfield on Wills, 202; 2 Williams on Ex’rs, 1140; Jones v. Westcourt, 1 Eq. Ch. Ap. 245; 2 Jarmin on Wills, 424; Harman v. Dickinson, 1 Bro. C. R. 91; Avelyn v. Ward, 1 Ves. Sr. 419; Muray v. Jones, 2 V. & B. 313; Meadows v. Parry, 1 V. & B. 125 ; Pearsoll v. Simpson, 15 Ves. Jr. 29; Sheppard’s Trust, 1 Kay & J. 269; Bradford v. Faley, 1 Doug. 63; Smart v. Clark, 3 Russ. 365; Franks v. Price, 3 Beav. 182; Smith’s Est., 1 Eq. Cas. 79; Coates v. Hart, 3 DeG. J. & S. 504; Underhill v. Roden, 2 Ch. Div. 497; Jull v. Jacob, 3 Ch. Div. 703; Key v. Key, 4 DeG., M. & G. 73; Blight v. Hartnoll, 13 Ch. Div. 858; Wilson v. Mount, 2 Beav. 396; Edgeworth v. Edgeworth, L. R. 4 E. & J. Ap. Cas. 35; McKennon v. Sewell, 5 Sum. 78; Crosby v. Wendell, 6 Paige, 548; Baker v. Pender, 5 Jones L., N. C., 351; Grahams Ex’rs v. Graham, 76 Pa. 477; Redfern v. Redfern, 6 Ch. Div. 136.
    The effect of the construction contended for by the children of ■Caroline Scholl, deceased, is, that the entire residuary estate should go to them, in the event that the wife survived the testator, in •addition to the special legacy of $2,000 bequeathed to them. Such a result is a potent circumstance that this was not the testator’s intention, and it is beyond the bounds of probability or even possibility that he intended a consequence so absurd, that if his wife, who, as his widow, had but a life estate in the residue and was advanced in years, died before him, the children of Caroline Scholl should have only $2,000, but if the wife died after him, they were to have his entire estate. And the absurdity becomes more glaring, if she died either one day before or one day after the death of the testator.
    Words and clauses of sentences or whole paragraphs may be transposed to any extent, or words supplied, with a view to show •the intention of the testator. Chrystie v. Pyfe, 19 N. Y. 344; Parks v. Parks, 9 Paige, 107; Covenhoven v. Shuler, 2 Paige, 122; Mutter’s Est., 38 Pa. 314; Brounswords v. Edwards, 2 Ves. Sr. 248; Walker v. Walker, 17 Ala. 396; East v. Cook, 2 Ves. Sr. 30; Baker v. Pender, 5 Jones, N. C. 539; Linstead v. Green, 2 Md. 82; Grimes v. Harman, 35 Ind. 198; Jackson v. Hoover, 26 Ind. 511; Parnell v. Dudley, 4 Jones Eq., 203; Ferry’s Ap., 102 Pa. 207; Graham v. Graham, 3 Clark, 212; Metcalf v. Framingham, 128 Mass. 370; Leach v. Michlin, 6 East, 496 ; Rathbone v. Dykeman, 3 Paige, 9; Horwitz v. Norris, 60 Pa. 287; Cleland v. Waters, 16 Ga. 496; Clements v. Paske, 3 Dougl. 384; Moneypenny v. Deering, 2 DeG., M. & G.; Leslie v. Bradley, 1 Hare, 10; Mellish v. Mellish, 4 Ves. Jr. 49; Doe v. Turner, 2 Dow & Ry. 398; Parker v. Tootal, 11 H. of L. C. 143; McKeehan v. Wilson, 53 Pa. 76; Hyatt v. Prigsby, 231 Barb. 205; Pond v. Berg, 10 Paige, 140; 1 Redfield on Wills, 453.
    
      Henry W. Scott, with him J. A. Beeber, George Boss and L. L. James, for appellees.
    The first three assignments of error are too. general, under rule xxii of this court. Bull’s Ap., 24 Pa. 286; Dabney’s Ap., 120 Pa. 344; Bank of Blairsville Ap., 5 Cent. R. 701.
    The first, third and fourth violate the rule, by embracing two. separate points. Neiss v. Foster, 64 Pa. 495; Burkholder v. Stahl, 158 Pa. 371.
    Nothing is now shown to the court here that the auditor’s fee-was unreasonable. In McCann’s Ap., 7 Cent. R. 847, upon a similar-specification, this court said: “ In the absence of testimony showing the auditor’s fee to have been unreasonable, we will not assume it. to be excessive.”
    If the meaning of a will is doubtful, that construction is to be preferred, which passes the estate in accordance with the rules of inheritance under the intestate laws. Smith’s Ap., 23 Pa. 9;. France’s Est., 75 Pa. 220; Brendlinger v. Brendlinger, 26 Pa. 132;. Lipman Ap., 30 Pa. 180; Bradley’s Est., 17 Phila. 475.
    A correction is only permissible when the intention to be helped is apparent beyond a reasonable doubt. McKeehan v. Wilson,. 53 Pa. 76-7; Redfield on Wills, 2d ed. p. 465, pl. 15.
    The result of all the cases in regard to supplying words seems to be that it cannot be done, unless it is clear there has been an omission, and also clear what the precise omission was. ... In other words, you cannot, by mere construction, incorporate distinct, provisions into the will, however certain it may be they were omitted by mistake. Hay v. Earl of Coventry, 3 T. R. 83; Chapman v. Brown, 3 Burr. 634; Long v. Labor, 8 Pa. 232; Carman’s Ap., 2 Penny. 332; Varner’s Ap., 80 Pa. 140; Bender v. Dietrick, 7 W. & S. 286; Hitchcock v. Hitchcock, 35 Pa. 393; Reek’s Ap., 78 Pa. 432; Williams on Exrs., bottom page 1085; Augustus v. Seabolt, 3 Metc., Ky., 156; 2 Jarmin on Wills, top p. 64; Wing v. Angrave, 8 H. L. C. 183.
    Where there is no latent ambiguity on the face of the will, a doubt suggested by any extraneous circumstances cannot be permitted to affect its construction. Sponsler’s Ap., 107 Pa. 95; Baker & Wheeler’s Ap., 115 Pa. 593; Rupp v. Eberley, 79 Pa. 141; Cowles v. Cowles, 53 Pa. 175; Hitchcock v. Hitchcock, 35 Pa. 393; Fitch v. Weber, 6 Hare, 51; Johnson v. Johnson, 4 Beavan, 318; Louisa Rorer’s Will, 7 Phila. 524; Sykes v. Sykes, L. R., 4 Eq. 200.
    Necessary implication means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator, cannot be supposed. Wilkinson v. Adam, 1 V. & B. 466; Townes v. Wentworth, 11 M. P. C. C. 626; Rupp v. Eberley, 79 Pa. 141; Hancock’s Ap., 112 Pa. 532; Hellerman’s Ap., 115 Pa. 120; Graham v. Graham, 3 Clark, 212.
    March 25, 1889.
   Per Curiam,

The questions presented by this record have been fully considered and satisfactorily disposed of by the learned president of the orphans’ court, and, for reasons given in his opinion, the decree should be affirmed.

Decree affirmed and appeal dismissed at the costs of the appellants. ^  