thus: the dealer in the wares subject to exemption has it in his power by notice, not only to relieve his own property from distress, but also, by a judi And it has been repeatedly held that in the case of personal property, the claim is in time if made before the day of sale, the object of the legislature being to prevent a sale of the prop-cious exercise of that power, to prevent injury to erty. Neff's Appeal, supra. Diehl v. Holben, supra, 217. Rogers v. Waterman, I Casey, 182. It is claimed by the other side that, as the language of the Act is "levy and sale," the notice must be given before levy made. The language of the Act of 1849 is the same, and yet it has always been held that the claim is in time if made after the levy and before the sale; besides the title of the Act of 1876 is "An Act to exempt pianos . . . from levy or sale . . .” The Legislature intended to prevent a sale of the property exempted, and notice is necessary simply to free it from the grasp of the landlord. the owner of the demised premises. If notice be given when the leased instrument is put upon the demised property, or at a time when there is no rent due, the tenant is thereby prevented from acquiring a false credit, and the landlord is informed that he must look to other goods for the rent of the current quarter, and, failing that, that he may proceed to regain possession of his tenement by the ordinary statutory methods. If, on the other hand, notice be given only after the rent is due, it may happen that the tenant may have received a credit to which he was not en titled, and the landlord may lose, by no default of his own, a lien which lawfully attached upon the goods. Seeing then that the former proposition puts neither hardship nor inconvenience upon the dealer, and is as it seems also consonant with the legislative intent, we think it should be adopted as the proper construction of the statute. The attempt to assimilate the Act under consideration to the general Exemption Act of 1849, has not been successful. The former only affects the wares of a special class of dealers, and the landlord cannot know, except upon notice, whether they are leased by his tenant or owned absolutely; whilst the latter is general, and every one knows, without notice, that the exemption right belongs to the debtor, and that he may claim that right at any time before his goods are sold on execution. Further, in the one case, notice is necessary as a condition precedent to the exemption; without such notice it cannot exist; but in the other it exists without notice, and that such notice is required at all, is only that a presumption of waiver may be rebutted. Oct. 21, 1878. THE COUrt. The Act of May 13, 1876, was passed in favor of a special class of dealers, and was intended to exempt certain of their wares from the common law right of distress. By this Act, as to the articles therein described, the landlord is deprived of a right and power which, before the passage of said Act, he possessed. It follows that this Act, being in derogation of the common law, must receive a strict construction. In other words, the dealer's right to have his property exempted ought not to be extended beyond the plain intent of the Legislature as indicated by the words of the Act, and if those words are, as to their meaning, ambiguous or obscure, the rights of the landlord must be as fully considered, in the construction of the statute as those of the dealer. Now the Act prescribes that pianos, melodeons, and organs "shall be exempt from levy and sale on execution or distress for rent," but only on consideration that the owner of such instruments, or his agent, shall give notice to the landlord, or his agent, that the instrument is leased or hired. And why give notice to the landlord? If the object in view was only the exemption of this class of property, without regard to the rights of the landlord, why not leave it in the same condition which leased or loaned property occupies with respect to an execution for an ordinary debt? We think this question can be fairly answered only upon the assumption that the Legislature intended, as far as consistent with the privi-sents. lege granted, to protect the landlord from injury, [This case in effect reverses Wireman v. Ditson, C. and not to create a case of exemption similar to P. No. 3, 5 WEEKLY NOTES, 428.] that prescribed by the Act of 1849. I, then, the proviso originated in the legislative regard for the lessor's right, we must so construe it as fairly to carry out the idea thus made prominent, and this a fortiori, if we do not thereby infringe the privileges granted to the dealer. The matter then stands We conclude then, finally, that the notice in the case in hand, given as it was after the levy, was too late; that it should have been given when the leased instrument was put upon the demised premises, or, at latest, before the landlord's right to distrain had accrued. The judgment of the Court below is reversed, and judgment on the special verdict for the defendant, and that he have a return irreplevisable, and costs of suit. Opinion by GORDON, J. MERCUR, J., dis Oct. & Nov. '78, 1. Crosky v. Dodds. 1878. | ment on the verdict for the plaintiff. Defendant took this writ, assigning for error the entry of said judgment. "And it is my desire and will that they, aforesaid, Ann Crosky my wife, my daughter Ann Crosky, my daughter Mary Crosky, and my daughter Elizabeth Crosky, and the survivor or survivors of them, shall enjoy the south half of my place, containing fifty acres, and allowances (being the balance after the fifty acres I have already conveyed to my son David), situated in Pine Township, to hold the same as tenants in common." Thos. M. Marshall, for plaintiff in error. Since the Act of April 8, 1833 (Purd. Dig. 1475, pl. 10), "all devises of real estate shall pass the whole of the estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appear by a devise over or by words of limitation or otherwise in the will that the testator intended to devise a less estate." It is settled beyond controversy that a devise of the income and profits of land generally is a devise of the land itself. 2 Jarman on Wills, 534. Leech v. Robinson, 24 Sm. 276. tainly as large and comprehensive as "rents and the scope Fulton v. Fulton, 2 Grant, 28. J. W. Over (with him J. C. McCombs), con tra. Oct. 21, 1878. THE COURT. This was an action of ejectment. The plaintiff in error claimed title under the last will and testament of David Crosky. After giving small specific legacies to several of his children, the testator gave The said devisees conveyed their interest in to his wife and three unmarried daughters and the premises to their brother, David Crosky," the survivor or survivors" of them, all his perJr. As above mentioned, the plaintiff is the sole survivor of the children of David Crosky, Sr., all of whom died intestate and without issue, except the said David Crosky, Jr., who left a widow, the defendant, Eliza Crosky, and children surviving him. The plaintiff claimed that the above clause in her father's will vested only a life estate in her mother and sisters, subject to which she took by descent the one undivided half the premises in question, to recover which this action was brought. sonal estate. Then follows the clause on which the contention arises: "And it is my desire and will, that they, aforesaid, Ann Crosky, my wife, my daughter Ann Crosky, my daughter Mary Crosky, and my daughter Elizabeth Crosky, and the survivor or survivors of them, shall enjoy the south half of my place, containing fifty acres and allowances (being the balance after the fifty acres I have already conveyed to my son David), situated in Pine Township, to hold the same as tenants in common." This action was for the land thus devised. The jury found for the plaintiff below, subject to the opinion of the Court on the question of law reserved, whether the devisees took a life estate or a fee simple. If the former, then judgment to be entered on the verdict in favor of said plaintiff, if the latter, judgment to be entered for the defendant below, non obstante veredicto. The Court entered judgment for the plaintiff below. The true construction of this clause in the will presents the only ques The jury found for the plaintiff, subject to the opinion of the Court on the question of law reserved, to wit: whether under the will of David Crosky his wife and daughters, Ann, Mary, and Elizabeth, and the survivor or survivors of them, took a life estate or a fee simple. If a life estate, then judgment to be entered on the verdict for the plaintiff, if a fee simple, judgment to be entered for defendant, non obstante veredicto. The Court (COLLIER, J.) subsequently entered judg-tion in the case. All The ninth section of the Act of 8th April, Jan. '77, 10. 1833 (Pur. Dig. 1475, pl. 10), declares devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise, in the will, that the testator intended to devise a less estate." Will- Devise. Urich's Appeal. March 8, 1878. Construction of" Heirs"When meaning is limited by subsequent clauseLife estate-Power to devise-General intent Rule in Shelley's Case-" Children or heirs" - Construction of. Words, which by themselves import a fee, may when taken in connection with other clauses in a will showing the general intent, be construed as a devise of a life-estate only. sonalty thereon to his son J. "and his heirs," but by sub- The clause cited shows it was the testator's "will" that the devisees named should "enjoy" the land devised, and "hold the same as tenants in common." There is no devise over of these lands. There is neither any other specific devise of them nor any residuary disposition of them. He declares that he had already conveyed a part of the lands to his son, "the balance," that is, all the residue of said lands, he gave to his wife and daughters named, to " enjoy" together. The will gave no right to, nor use, possession, or enjoyment thereof, to any other person or persons. The devisees could not fully enjoy" these lands without taking the rents, issues, and profits thereof. It is manifest that the testator did not give them any less interest than the rents, issues, and profits. If he intended to devise those, it is a devise of the land itself as fully as he held J. died intestate, leaving a widow and five children. In the same, unless it appears in the will that he in-proceedings for partition amongst the children, his widow, tended to devise a less estate. (France's Estate, who was not a party, prayed for leave to intervene to pro25 P. F. Smith, 220.) We discover no language tect her dower: in the will indicating an intention to give these devisees less than a fee simple, a children, and that the widow's petition was, therefore, Held, that J. took only a life-estate with remainder to his properly dismissed. Urich v. Merkel, 2 WEEKLY NOTES, 550, affirmed. Appeal from the Orphans' Court of Berks County. This was an appeal from a decree dismissing the petition of Matilda Urich, and her husband, to intervene as parties in proceedings for the partition of certain real estate. The testator manifestly intended to devise all his real estate. Unless the fee passed under the clause in question, we are forced to the conclusion that as to this he died intestate. Such conclusion is unwarranted by any language therein contained. (Shinn v. Holmes, I Casey, 142; Hall v. Dickinson, 7 Ibid. 76; Schoonmaker v. Stockton's Administrator, I Wright, 461.) But in order to reduce a devise of real estate to less than the whole estate of the testator therein, such an intention must appear in the will. If, there-lows:fore, the language used threw some doubt over the "I give and bequeath unto my son John Stoudt and to question, yet we could not say that it thereby his heirs, all my large farm where I now live. followed that such a restricted intention appeared containing three hundred acres more or less, together with in the will. Due effect should still be given to all the buildings and improvements, and grain seeded out, the statute by declaring the whole estate of the and grass, and hay, and straw, and manure, and all timtestator passed. (Shirey et al. v. Postlethwaite et stock and utensils belonging to the farm, unto the said John ber, and posts, and rails, together with all the farming al., 22 P. F. Smith, 39.) The learned Judge erred in holding that the devisees took a life estate only, and the judgment entered on the reserved question must be reversed. Judgment reversed; and now, Oct. 21, 1878, judgment in favor of the plaintiff in error, non obstante veredicto. Opinion by MERCUR, J. Jacob Stoudt died in the year 1853, leaving a will, the material portions of which were as fol Stoudt and to his heirs. Item: I give and bequeath unto my daughter Catharine, wife of Daniel Reeser, and unto her heirs all that certain farm containing about two hundred and ten acres, together with all grain seeded out on the pre mises, and with all buildings and improvements; further, I give and bequeath unto my aforesaid daughter Catharine and to her heirs a certain tract of land together Item: I give and bequeath unto my daughter Harriet Stoudt and to her heirs a certain farm contain ing one hundred and eighteen acres with all the buildings, and improvements, and grain seeded out, and all hay, straw, and manure on the premises, with all timber, posts, and rails. Item: I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Sarah Stoudt. Item: I order and direct, that my daughter Catharine, wife of Daniel Reeser, shall pay out unto my daughter Polly, wife of John Zacharias, Jr., in one year after my decease, out of the farm of the said Catharine, the sum of twenty-four hundred and fifty dollars. Item: I order and direct that my daughter Catharine, wife of Daniel Reeser, shall pay out, in one year after my decease, out of her farm and land aforesaid, the sum of nine hundred and fifty dollars unto my daughter Harriet Stoudt. shall have privilege to dispose of their several legacies by will as aforesaid, but not otherwise." John Stoudt died intestate in September, 1870, leaving five children and a widow, who subsesequently intermarried with Daniel Urich. In 1876 Jacob A. Stoudt, one of the children of John Stoudt, presented a petition in the Orphans' Court of Berks County, praying for an inquest and partition of the tract of land devised to his father, and the other children of John Stoudt were made parties thereto. Before the execution of the writ Matilda Urich, the widow of John Stoudt, and her husband presented a petition for leave to be made a party, claiming a dower interest in the tract of land. The petition was dismissed by the Court (SASSAMAN, A. L. J.) upon the authority of Urich v. Merkel (2 WEEKLY NOTES, 550). From this decree the present appeal was taken. Geo. W. Biddle, Josiah Funck, and H. Van Reed, for appellants. John Stoudt took a fee simple under his father's will, because— (1) The devise is to "John Stoudt and his heirs," and it is not reduced by express terms or implication even, by any subsequent clause; (2) There is no devise over; (3) The restrictive clause is inoperative; (4) There is an express power to devise; and (5) The general intent of the testator is clear. One to whom a fee has been devised cannot Item: I give and bequeath the sum of nine hundred and be restrained in the exercise of his right of nine dollars unto my daughter Polly, wife of John Zacha-ownership. rias, to be paid out unto her in one year after my decease, by my executors hereinafter named, out of my personal property, so as to enable her, my said daughter, to settle for the dower and lien, which is on the tract of land bequeathed unto her. Item: I herewith make known and declare it as my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid, neither shall they have a right to encumber it with debts or liens, but the lands shall remain free for their children or heirs, and they, my said children shall have the use, income and profit of the said lands and farms during their lifetime. Item: It is my will and do direct, that all my personal property consisting of bonds and notes, book account, and stocks, and whatever kind of personal property I may own at the time of my decease, shall be equally divided among all my children, to wit: John, Catharine, Sarah, Polly, and Harriet, first having paid out unto my said daughter Polly aforesaid, the sum of nine hundred and nine dollars, and also the further sum of one thousand dollars to be paid out unto my daughter Sarah for extra services to me rendered, and besides I wish my executors to settle off all my just debts and funeral expenses out of the aforesaid personal property before an equal distribution takes place. Reifsnyder v. Hunter, 7 H. 41. And this particular intent must give way to the general intent to grant a fee. That these two thoughts were in the testator's mind is clear from the fact that having first given a fee, and then (as he supposed) inhibited its alienation, he proceeds to say "but the lands shall remain free for their children or heirs"-words which are incompatible with the idea that he had at first intended to bestow only a life estate. This construction is the more natural in view of the fact that there is no devise over at all, unless the words just quoted can be brought to have that meaning, which seems most improbable. The right to dispose of the estate by will would carry the fee. Jackson v. Anderson, 16 Johns. Rep. 388. Girard L. I. and T. Co. v. Chambers, 10 Wr. 490. Again, it must be observed that the same lanItem: Whereas I have ordained in this, my will, that guage used in devising this farm occurs in the none of my children shall have a right to sell nor encum-clauses by which other tracts are given to the ber nor involve any of the real estate to them bequeathed, daughters, and upon the devise to Catharine but I do hereby give either of my aforesaid children power, there is a charge of $4350 within one year after authority, and the right to make a will and testament to take effect after their decease, so that either of them, to the testator's decease; if this were construed as wit: John, Catharine, Sarah, Polly, and Harriet may and a life estate, then she might be a loser when a benefit was intended, which the law does not [tention is the pivot of the question, and must be permit. Lessee of Ferguson v. Zepp, 4 W. C. C. R. 649. And if her estate is a fee then it is plainly the general intent that each of these estates should be of the same kind. The blending of real and personal estate in the same devise affords another reason. Steele v. Thompson, 14 S. & R. 101. If it is held that this is a devise of a life estate with remainder over to "children or heirs," then assuming, as is plain, that the word "children" is tantamount to "heirs," the rule in Shelley's Case must make them words of limitation, and John's estate a fee. Kepple's Appeal, 3 Sm. 211. carefully gathered from all parts of the will. The first point of notice is, that on its face it lawyer or a skilful conveyancer. appears that the will was not written by a learned Hence the lan guage is not so conclusive of intent. The next matter is the evident intent of the testator to equalize his children in a general way; and the portion of John, the only son, is much larger than those of his sisters. John takes his " "large farm" of three hundred acres, the grain seeded out, and all farming stock and utensils. Catharine, two parcels containing two hundred and twenty-five acres, and pays thereout $4300 to her sisters, Sarah, Polly, and Harriet, and they take smaller farms-Sarah 137 acres, Polly 110 acres, and Harriet 118 acres. All the personal estate is then divided equally among the five children, John, Catharine, Sarah, Polly, and Harriet, excepting additional to Polly and Sarah $909 and $1000. It is thus evident that the charge of $4300 against Catharine's land was to produce equality of division; the children of Catharine taking the advantage of the increased size of her farm. or A. B. Wanner and W. H. Livingood, contra. A devise of a fee simple may be cut down to a life estate by subsequent clauses in a will. 3 Greenleaf's Cruise on Real Prop. 343. This fee is cut down because the devisees are deprived of the right of alienation, the land is directed to remain free for their children heirs, and they are to have the use or income for their lifetime. Although these provisions may be inconsistent with a devise in fee, they certainly are not with that of a life estate, and this is equally true of a power to will. Yarnall's Appeal, 20 Sm. 335. The charge of $4350 upon Catharine's estate simply affixes a condition to the benefit bestowed, and such a condition does not show an intention to give a fee where any other estate is clearly in dicated. Lessee of Burkart v. Bucher, 2 Binn. 455. North v. Martin, 6 Sim. 266. With this exhibition of general intent we come to the special intent of the testator as to the quantity of estate limited to his children. It is brought out clearly in the fourth and second items from the end of the will. The fourth is in these words: "I herewith make known and declare it is my will that none of my aforesaid children shall have a right to sell or assign their land or property to them bequeathed as aforesaid; neither shall they have a right to encumber it with debts or liens, but the land shall remain free for their children or heirs, and they, my said children, shall have the use, income, and profit of the said lands and farms during their lifetime." Now if we treat the word "heirs" in the principal devise to John Stoudt, as conclusively descriptive of the quantity of his estate, the entire item just quoted is clearly repugnant and nugatory. But we cannot do this, if by any proper interpretation the items can be reconciled. To hold to the legal and technical meaning of March 18, 1878. THE COURT. The will of the word "heirs" we must assume that the testaJacob Stoudt is brought before us a second time tor was grossly ignorant of his own intent, and in the hope of changing our opinion upon it. of the law also, when he came to the quoted That opinion, though expressed in a short Per item. If this item contained the first two clauses curiam, to be found in 2 WEEKLY NOTES, 550, only, perhaps we might reach this result, for then was maturely formed. Its brevity is not evidence we should have only a technical term interpreted of want of examination, but of the necessity of by the law (Criswell's Appeal, 5 Wright, 288), condensation where there is so much to do. The and a mere attempt to clog the fee with illegal able arguments of the counsel for the appellants conditions. But when we reach the last two have not changed our deliberate interpretation of clauses in the same item, equally parts of the the devise to John Stoudt. We agree with all said, same thought and expressed uno flatu, we perupon the first expression of this devise, if the ceive we cannot do this without violating a clear testator intended to give him a fee, and used the intent of the testator fully and distinctly exword heirs in its legal acceptation. But that in- | pressed. Thus he says without break in the sen |
