of the interest in Fairhill devised by his father in trust for him. The surviving brothers and the representative of Charles, then also deceased, sought to exclude the children of Joseph Parker, Jr., from participation in this estate, contending that, under the limitation in the will of the testator, the share of Samuel in Fairhill was divisible among the surviving sons and the children of Charles, to the exclusion of the children of Joseph Parker Norris, Jr. It was held by this court unanimously that the children of Joseph Parker, Jr., were entitled to a one-fifth share of Samuel's interest. Horwitz v. Norris, 60 Pa. 261. The court, however, divided upon an interpretation of the will, the majority so interpreting it as to give to the appellants what they now claim; and one of their contentions is that, as their right to the one-fifth of Samuel's share enjoyed by Henry and his own one-sixth is res adjudicata, the whole fund must be awarded to them under the doctrine of stare decisis. It is not necessary for us to decide whether the claim of the appellants is res adjudicata. I do not think it is, because the question now before us was not and could not have been before the court then. Henry was then living, as were Isaac and George, and the question of where his interest should go if he should die childless was not then a matter for the court's determination, for it was not involved in the controversy be fore it. We differ, however, as to this, but the majority of the court agree in adopting the interpretation of the will as made by Mr. Justice Agnew, while not binding upon us in deciding the question before us, as the only one that we can now give to the will if we are to read it as the testator wrote it and are to direct that, what is left of Fairhill shall go where he said it should go; and we adopt bodily what Judge Agnew says as expressive of our views in this contention. His interpretation is unanswerable, because he read the will just as the testator had written it in words free from all doubt. If the appellees are to participate in this fund, they must point to their right to do so in the will. The court below properly sustained their contention that it is no part of the residuary estate of the testator; and, if it is not, what clause in the will gives any of it to them? The only clause to be read in determining where the fund shall go is the one quoted. The clauses as to the other sons under whom the appellees claim are exactly like it. The words of the testator are that, upon the death of Henry, "without leaving a child or children or a grandchild or grandchildren living at his death then that one of the said five-sixth parts of the lands tenements and premises aforesaid called Fairhill shall go to and be equally divided among my said other sons Charles Samuel Isaac and George or such of them as shall be then living and the trustees hereinafter mentioned for my said son Joseph Parker Norris junior in equal parts so that the then survivors of my said four sons

Charles Samuel Isaac and George shall each take one equal share and the Trustee for my said son Joseph shall take the other equal share thereof." No child of a deceased son can possibly take under these words. They are not contradictory of nor irreconcilable with any other clause of the will, and stand out alone as the clearly expressed intention of the testator, which will not down even before theories of distinguished and learned judges that would override them. The testator twice declares in the same clause, in disposing of Henry's interest in Fairhill, that it shall be divided among the surviving brothers and the trustees of Joseph, and what he means by his surviving sons is not open to any other interpretation than his sons who might be living at the time of Henry's death, for he designates them as the sons "then living" and the "then" surviving sons. How, under a theory that, as the testator must have meant equality among his children, any other than their plain and literal meaning can be given to these words, and how they can be held to embrace children of sons who at the death of Henry were not "then living," were not "then" surviving, ought to be inconceivable to the judicial mind. No theory of what a testator meant can receive judicial consideration, when what he says can have but one meaning, whether read by layman or lawyer. We need not follow what was said in Horwitz v. Norris to show that the testator may not have intended equality, as, for instance, in devising Sepviva to his daugh ters, there is greater inequality, "even more glaring than as to Fairhill"; nor need we refer to the reasons given by the court which may have led the testator to make a distinction in favor of the children of his son Joseph. He had a right to distribute his estate unequally, and he had a right to do so for any reason that may have seemed sufficient to him, without stating it in his will. He must have had some reason for disposing of Fairhill as he did; but whether he had or had not is not a question at all for us. We are to determine only what was his intention as expressed in the words of his will, and, if their meaning is free from all doubt, the intention expressed by them must be carried out.

If the testator had intended that the children of a son dying before his childless brother should participate in the interest of such deceased childless son, he naturally would have said that such share should be divided among the surviving sons and the issue of such as were deceased per stirpes. In disposing of Sepviva to his seven daughters and in providing what should become of the share of a daughter dying without issue and without exercising her power of appointment, he gives an interest to the children of surviving daughters, and, in doing so, directs that the lawful issue of any child or children that may be dead shall take with the surviving children such share as their parent

would have taken if living. This is only corroborative, but strongly so, that he intended by his words as to Fairhill to include only surviving sons. If he had intended to embrace the issue of deceased sons, he would certainly have said so, as he did in the clause following in which he disposes of Sepviva. But it is not for us by any effort to attempt to show that Henry's share can go only to his surviving brothers and the trustees of Joseph, for such an effort would in itself cast doubt upon the meaning of the words absolutely free from it. They speak for themselves, and need no interpretation. The testator directed that, if his son Henry should die without leaving a child or grandchildren, whatever interest he enjoyed in Fairhill at the time of his death "shall pass to and vest in the trustees herein appointed and their heirs respectively subject to the restrictions and limitations and for the uses herein declared in like manner as if the same had been so devised in the first instance"; and it is argued that this means that, upon the death of a son without issue, his share mut be regarded as never having been in trust, but as having been devised by the testator in the first instance to the trustees for the other sons. The answer to this is that the will directs it to go to the trustees, who are to hold it subject to the same restrictions and for the same uses as the devise of the one-sixth to each of the sons. At the death of Henry there was no trustee for Charles or Isaac or George. The trust for each brother, except Joseph, ceased at his death with issue. It is further contended that the testator did not intend to exclude the issue of a deceased son from the distribution of a childless son's share, because he added: "That is to say the trustees for my said sons Charles Samuel Isaac George and Henry to take in trust for the use of my said sons Charles Samuel Isaac and George in equal parts and for the uses hereinbefore mentioned and the trustees for my said son Joseph to take in trust for the like uses that hereinafter mentioned." The meaning of these words is also clear. Immediately preceding them is a direction that the surviving sons shall each take an equal share with the trustees for Joseph of the interest of the deceased childless son; and that he might not be misunderstood as giving such share to the sons absolutely, but to trustees for them, the testator proceeds to say, "That is the trustees for my said sons," emphasizing his intention that the shares of the sons, whether coming to them in the first instance upon his death or through the death of a childless brother, should not vest absolutely in them, but should go to the trustees named for them. While only surviving sons can, through their trustees, participate in the share of a deceased

*

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childless son, no such restriction is placed upon the trustees of Joseph's share. What is res adjudicata in Horwitz v. Norris, concurred in by the whole court, is that, as to Joseph's share, though he was dead at the time Samuel's share was being divided, the trust as to his share continued to exist as a scintilla juris to pass the estate to his descendants. That trust continues to pass Henry's share in Fairhill into the same channel, and the trustees of Joseph alone can take it, for no other son of the testator survives and nothing passes to his descendants. But one interest out of five that might partake in the share of a son dying without issue now remains, and, under the express words of the will, there it must go.

The decree of the court below is reversed, and it is directed that the record be remitted that distribution may be made in accordance with this opinion.

MESTREZAT, J. (dissenting). I concur in holding that the claim of the appellants is not res judicata, but I do not agree with the majority of the court in holding that Henry Norris's share in Fairhill passes entire to the trustees of Joseph Parker Norris, Jr., for the latter's descendants. This, in my judgment and with deference to the views of the majority of the court, is a strained and artificial construction of the will, not warranted by the settled rules of interpretation, and manifestly defeats the intention of the testator. It gives force and effect to an assumed meaning of one part and disregards the explicit language of the other part of the very clause of the devise which passes the estate in controversy. It ignores equality among children, the primal thought of every parent, and creates a distinction among them without any apparent reason whatever, a direct violation of a universally recognized rule of construction. It gives the estate to the descendants of a discredited son to the exclusion of the descendants of other sons who were in equal if not greater favor with the testator.

I think it clear from the language used in this clause of the will and from the tenor of the entire instrument that the testator intended equality among his sons and their descendants in Fairhill, and that upon the death of either of the sons without issue his share should vest in the trustees, distributable among the remaining sons and the issue of deceased sons. The able and convincing opinion of Mr. Justice Sharswood, concurred in by Chief Justice Thompson, in Horwitz v. Norris, 60 Pa. 261, leaves nothing to be said in support of the conclusion of the common pleas in this case, and for the reasons there given I would affirm the decree of the court below.

(217 Pa. 559)

In re NORRIS' ESTATE. (No. 2.) (Supreme Court of Pennsylvania. April 22, 1907.) Appeal from Court of Common Pleas, Philadelphia County.

In the matter of the accounting of Henry Norris, trustee of the Fairhill estate of Henry Norris, filed by his executors. From the decree dismissing exceptions to the auditor's report, Charles C. Norris and others appeal. Dismissed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Thomas Leaming, for appellant Charles Camblos Norris, M. D. William Draper, for appellant Elizabeth N. Brown. Henry S. Drinker, Jr., H. Gordon McCouch, and Samuel Dickson, for appellants Charles Norris et al.

Testator gave his sister a specified amount and also one-half of his residuary estate. By a codicil he gave to two nieces and a nephew "the legacy which I have left to my sister," share and share alike. Held, that the word "legacy" will be construed to include, not only the money legacy in the will, but the gift of half of the residuary estate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 985.]

2. SAME INTENTION TO DISINHERIT SUMPTIONS.

PRE

The presumption against an intention to disinherit heirs is without obligation, where it is apparent that the intent of the testator was to favor some to the exclusion of others, as where he excluded four-fifths of his relatives from any participation in his personal estate.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 968.]

Appeal from Orphans' Circuit Court, Philadelphia County.

In the matter of the estate of Henry Norris, deceased. From a decree dismissing exceptions to the adjudication, John Lambert and Elizabeth Norris appeal. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

G. W. Pepper, for appellants Sarah E. Hale, John Lambert, and Elizabeth Norris. George Quintard Horwitz and Layton Martin Schoch, for appellees Leila H. Sharpless, Orville Horwitz, and George Quintard Horwitz. Samuel Dickson, for appellees Charles Norris, Charles Norris, the younger, Doro

thea Clapier Norris, Fanny Norris, Joseph P. Norris, and Mary Norris Cochran, John J. Ridgway, for appellee T. Parker Norris. W. Drayton, for appellees Elizabeth Brown, Mary Brown, Fanny Brown, Emily H. Glover, B. Dawson Coleman, Edward P. Coleman, Fanny B. Coleman, Harriet Glover, and Anne C. Carvello, children and grandchildren of Deborah Brown, a sister of testator. Hampton L. Carson, for appellees Lewis H. Parsons and Mary N. Parsons. Thomas Ridgway for appellee Charles Camblos Norris. Isaac Norris, for appellee Isaac Norris, M. D.

FELL, J. The disposition of these appeals depends upon the meaning to be given the word "legacy" in the second codicil of the testator's will. The will and the codicils thereto were written by the testator, who was an intelligent man, experienced in the business management of estates. At the date of his will, April 29, 1891, his nearest of kin were two sisters. His nephews and neices and grandnephews and nieces numbered about 50. His estate consisted of personal property only. He gave to each of his sisters $200,000, to each of three nieces and nephews and to one grandnephew $50,000, and to each of the three grandnieces $25,000. He gave to a friend $25,000, and to four charities $5,000 each. The residue of his estate, approximately $3,000,000, he gave to his sisters. He attempted by his will to dispose of a large estate known as Fairhill, in which he had only a life interest. This he gave to the children of four deceased brothers. Upon the death of one of his sisters in 1899 he wrote the first codicil to his will, in these words: "I give and bequeath to the daughters of my sister, Sally N. Pepper, the legacy which I have left to her, share and share alike." Upon the death of his other sister, who died unmarried and without issue in 1901, he wrote the second codicil, as follows: "I give and bequeath to my nieces, Sarah E. Hale and Elizabeth Norris, and to my grandnephew, John Lambert, Jr., the legacy which I have left to my sister, Emily Norris, share and share alike." In the same year the testator made two other codicils. By one he gave small legacies to household servants, and by the other he gave to the wife and son of a nephew who had died the legacy which he had given to him. The testator died in 1904.

It is conceded that the act of May 6, 1844 (P. L. 564), secures to the children of Mrs. Pepper the legacy given her by the will. The question in the case is whether the word "legacy" in the second codicil refers only to the bequest of $200,000 to Miss Norris, or whether it includes the gift of one-half of the residuary estate. If restricted to the first, it follows that there was an intestacy as to one-half of the residue. In seeking the intention of a testator, the exact words he has used should first be considered, and in

doubtful cases they should be given their technical meaning on the presumption that he used them in that sense. A legacy is a testamentary gift of personal estate. It is a generic term, and includes residuary as well as general, specific, and pecuniary bequests. As used in the act of 1844 in relation to bequests to brothers and sisters of a testator who die in his lifetime leaving Issue, and in its strict technical sense, it applies to any testamentary gift of personal estate. In its appropriate and technical use it includes everything the testator bequeathed to his sister. From the use of this word in the body of the will we find no indication of an intent to give it a restricted meaning in the codicils. Its first use is in the plural in the clause, "I give and bequeath the following legacies." This is followed by the naming of legatees and the amounts given to each and by the residuary clause. Its second use is in the direction that all these legacies shall be paid clear of the collateral inheritance tax. If this direction had preIceded the gift of the residue, it would indicate a separation of it in the mind of the testator from the preceding gifts; but, since it follows it, all the gifts are left in the same class under the head of legacies, although the burden of the tax is placed on the residue.

The scheme of the testator's will is very clearly defined. He separated what he regarded as his purely personal estate from an estate which he had derived from his father, which he supposed he could dispose of.

He gave the first, excepting $45,000, to his sisters and to 10 favored relatives. He gave the second to the children of his deceased brothers. He knew very clearly what he wanted to do with his estate, and he disposed of the whole of it by a will that was entirely free from ambiguity. At the death of Mrs. Pepper he naturally desired that her children should take what he had given to her. He was an old man when he made his will, and in the course of nature his sister would not long survive him to enjoy the gift. Her children were the persons who would be benefited ultimately by the gift. If he wrote the first codicil with knowledge of the act of 1844, he was making more secure the disposition he had in mind of the whole gift. It cannot be assumed that he intended to divide it into two parts, and have the word "legacy" apply to one and leave the other to the operation of the act of assembly. If he wrote the codicil in ignorance of the act, and intended the word "legacy" to apply only to the bequest of $200,000, he meant not to continue the gift to his sister of one-half of the residue to her children, but to die intestate as to $1,500,000 of his estate. The word was used in the second codicil in the same sense as in the first. The reason for continuing the gift to particular persons is not so manifest, but their selection was a matter of personal preference. The consequence of the separation of the gift

into two parts, by limiting the word "legacy" to the pecuniary bequest only, would be the same, an intestacy as to one-half of the residue. The natural presumption that, when a man makes a will, he intends to dispose of his whole estate, unless the words he uses will not admit of such a construction, is strengthened by the fact that the testator in clear and unambiguous terms made a final disposition of all he possessed. The presumption against an intention to disinherit heirs is weakened by the fact that by his will the testator excluded four-fifths of his relatives from any participation in his personal estate. This presumption has force where no clear disposition has been made and one is to be inferred from some provision of a will. It is without application where it is apparent that the real intention of the testator was to favor some to the exclusion of others.

Our conclusion is that the testator used the word "legacy" in the second codicil of his will in its broader sense, and that it includes the whole gift to his sister, Miss Norris.

The decree of the court is reversed, and distribution will be made in accordance with this opinion.

Where a tenant is notified by the city of its intention to take a part of the leased premises, and such taking did not render the balance valueless to the tenant, a statement to the landlord by the tenant that he would have to vacate the premises, with a request to accept rental to a date mentioned, with a suggestion of an agreement for the future, without any statement as to when the premises would be vacated, is insufficient notice of surrender.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Stephen B. Fotterall against Jonathan O. Armour. Judgment for plaintiff, and defendant appeals. Affirmed.

It appeared at the trial that the letters of July 14 and August 10, 1898, were in full as follows:

"July 14th, 1898. 7 & 9 Manhattan Market, N. Y. Mr. S. B. Fotterall, No. 622 North 19th St., Phila., Pa.-Dear Sir: On my return to New York I found your letter of July 7th returning check for $666.66. As you are undoubtedly aware, the city of Philadelphia will evict us from these premises on the first day of August next, and in consequence of their taking part of the premises at that time, it will be necessary for us to vacate them, and after that date we will, together, have a claim against the City of Philadelphia for this rent. In any event we can probably arrange this satisfactorily and amicably at the time of appearing before the City's jury to assess damages, and we will be pleased to have you accept this check as pay

ment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future. Very respectfully yours, P. B. Adams."

"7 & 9 Manhattan Market, N. Y. Aug. 10, 1898. Mr. S. B. Fotterall, 2001 Chestnut St., Phila., Pa.-Dear Sir: We inclose you herewith our checks for $999.99 and also a postage stamp for two cents, being for rent in full for premises at No. 40 South Delaware Avenue, Phila., Pa. for the months of April, May, June, July, August and Sept. and would be pleased to have you send us proper receipt therefor. We have delayed sending you check for August and September thinking that it would be agreeable for you to make the claim against the city for the rent, in our place. However, we inclose you rent up to the first of October, and as we will be compelled to vacate the premises within a very short time, under the city's notice to quit, we will try to make some further arrangement with you at the time of meeting of the city's jury to assess the damages. Yours respectfully, P. B. Adams. [Inclosures.]"

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and STEWART, JJ.

Dimner Beeber and J. Levering Jones, for appellant. Ruby R. Vale and Edward W. Magill, for appellee.

MESTREZAT, J. By a lease dated September, 1885, Stephen B. Fotterall, the plaintiff, leased to Jonathan O. Armour, the defendant, "all the property known as No. 400 S. Delaware Ave. and No. 401 Penn St. for the term of five years to commence and be computed from the first day of January, 1886." The two properties are on the south side of and adjacent to Pine street, the first fronting 18 feet on Delaware avenue and the other fronting 20 feet on Penn street, and 'the buildings are separated by a brick wall in the rear. The annual rental was $2,000, payable quarterly. The lease provides that, if the lessee shall hold over after the expiration of the term, it shall be deemed and taken to be a renewal of the lease "for the term of another year and so on from year to year, until either party shall give three (3) months' previous written notice to the other of an intention to determine the tenancy at the end of any year." The lessee entered into possession of the premises, cut a passageway through the wall between the properties, and used them together as one property in the meat business of Armour & Co. He held over after the expiration of the five year term. On May 10, 1898, the city of Philadelphia gave to the tenant a notice that "the city of Philadelphia, at the expiration of three months from the date of this notice, will require for public use that portion of the property occupied by you as tenant, lying within the bed of Delaware avenue as estab

This

lished between Vine and South streets." would take from the east front of 400 Delaware avenue a strip of the width of 1 foot 10 inches at the south and 4 feet 4 inches at the north side. About the same time the landlord received a similar notice from the city. On July 2, 1898, the New York attorney of the tenant sent to the landlord a check for the rent of the property up to August 1, .1898. The landlord refused to accept the check and returned it. On July 14th, the attorney again wrote the landlord, acknowledging the return of the check, and said: “As you are undoubtedly aware, the city of Philadelphia will evict us from these premises on the first day of August next, and in consequence of their taking part of the premises at that time it will be necessary for us to vacate them, and after that date we will, together, have a claim against the city of Philadelphia for this rent. In any event we can probably arrange this satisfactorily and amicably at the time of appearing before the city's jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future." In reply, the landlord wrote the attorney that Armour's claim was against the city of Philadelphia and requested a check for the rent due April 1st and July 1st. The attorney wrote the landlord again under date of August 10, 1898, inclosing a check for the rent due for the months of April, May, June, July, August, and September, and added: "We have delayed sending you a check for August and September, thinking that it would be agreeable for you to make the claim against the city for the rent in our place. However, we inclose you rent up to the first of October, and, as we will be compelled to vacate the premises within a very short time, under the city's notice to quit, we will try to make some further arrangement with you at the time of meeting of the city's jury to assess the damages." The tenant vacated the premises in the latter part of September, 1898, but the landlord had no notice of this fact until some time after January 1, 1899. This action was brought to recover the rent due for the last quarter of 1898 and for the year 1899, aggregating the sum of $2,500. On the trial of the cause the tenant claimed that the letters of July 14 and August 10, 1898, constituted a sufficient written notice of an intention to terminate the tenancy under the terms of the lease, and that, therefore, he was not liable for the rent. The court denied this position, held that the notice was not sufficient under the terms of the lease, and the jury under proper instructions found that there was no such eviction as to warrant the tenant in leaving the premises before the end of the year, because the part taken did not render valueless what was left. In other words, according to the finding of the jury, the taking of the small part of the