LANCASTER LAW REVIEW. Rife vs. Geyer, 54 Pa., 395. Horwitz vs. Norris, 49 Pa., 213. The construction of the court below would make part of the estate subject VOL. XXVII.] MONDAY, MAR. 28, 1910. [No. 21. to the debts of Harry Hildebrant and Superior Court. Amanda Hildebrant, Appellant vs. Mary M. Hildebrant. permit his wife to participate both clearly against the intention of the testator. F. S. Groff for appellee. The language of the will gave a vested interest to Harry Hildebrant and Bequest per autre vie-Effect of clause his administratrix is entitled to the anexempting liability for debts. A testator by his will gave his entire estate to his executors, in trust, to pay the income to his widow for life, excepting that "during my wife's lifetime my executors shall pay my son Harry thirty dollars every three months,' without a gift over if Harry should die before the widow. He gave the whole income to Harry for life after the widow's death, with remainder to his surviving children, and if none, to be divided under the intestate laws, but further provides that Harry's interest shall not be subject to assignment, pledge or attachment for his debts. Held, That the testator did not die intestate as to any part of his estate and the legacy to his son was a vested one and on his death, before testator's widow, his annuity should be paid to his administratrix during the life time of the testator's widow, who could have no interest in it under the will. Appeal No. 5 of October Term, 1909, from decree of O. C. of Lancaster County ordering executor to continue to pay annuity to administratrix of deceased legatee. Affirmed. Testator's son having been given an annuity during his mother's lifetime and having died before her, his widow and administratrix petitioned the court to order the executor to pay the annuity to her during the mother's lifetime, and the court below (SMITH, P. J.,) so decreed. (See 26 LAW REVIEW. 60). The testator's widow then took this appeal assigning for error this action of the court below. W. U. Hensel and John A. Nauman for appellant. The will clearly makes the legacy to Harry Hildebrant a spendthrift trust. This prevents the legal estate from vesting in the beneficiary. Still vs. Spear, 45 Pa., 168. nuity between his death and his mother's death. Ritter's Appeal, 190 Pa., 102. The clause in the will that the legacy shall not be subject to assignment, attachment, etc., only protected the property in the hands of the executors while in transitu and did not lessen the quantity of the estate given. Beck's Estate, 133 Pa., 51. "The gift of a legacy under the form. of a direction to pay at a future time or upon a future event, is not less favorable to vesting than a simple and direct bequest of a legacy at a like future time or upon a like event." McClure's Appeal, 72 Pa., 418. The intention of the testator must "It is a rule of common sense as well as law, not to attempt to construe that which needs no construction." Reck's Appeal, 78 Pa., 435. "We regard this as the plain and obvious meaning of the words employed, and in such cases we do not think courts meaning unless required to do so by are authorized to impute a different some technical rules of construction, which is not the case here." Hancock's Appeal, 112 Pa., 541. March 3, 1910. Opinion by HEAD, J. An examination of the will we are required to construe clearly enough dis closes that the testator intended to make | court, holding that the legacy to the said a testamentary disposition of his entire Harry Hildebrant vested on the death estate. It is true that upon the happen- of the testator, and that under the terms ing of the contingency, apparently most of his will it was to continue during remote in his view, his property was the natural life of his widow, made the "to be divided among my (his) rela- decree prayed for. From this decree tives under the intestate laws of Penn- Amanda Hildebrant, the widow of the sylvania"; but this was none the less testator, appeals. a testamentary disposition of his property, and in nowise weakens the conclusion always favored by the law that a will should be construed as if the intention of the testator were to dispose of his entire estate unless the contrary intention plainly appears from the language of the will itself. Aside from a few minor bequests not involved in this case, the testator gave to his wife Amanda "the net rents, issues, income and profits of all my estate, real, personal and mixed, for her natural life *** less Thirty dollars every three months payable as hereinafter; * * * during my wife's lifetime my executors shall pay my son Harry Thirty Dollars every three months. The will contains no line or letter that would be effective to change by increase or diminution the fixed and determinate provision thus made for the widow which was to continue during her natural life; and as she still happily survives, we have no concern with those portions of the will intended to become operative only after her death. The son of the testator, however, already mentioned, to whom he gave the legacy of thirty dollars every three months during the natural life of the widow has died, leaving to survive him a widow but no issue. His widow, after his death, filed her petition in the orphans' court praying for an order on the executors of the will of Martin Hildebrant, deceased, to continue to pay to her the sum of thirty dollars every three months during the remainder of the natural life of the widow of the testator. The executors filed an answer setting up that, under the terms of said will, the said Harry Hildebrant, had no vested legacy, and that with his death no right remained to his widow, who was also his administratrix, to have said payments continue. The learned orphans' As we have already stated, there is not in our opinion any provision of the testator's will under which his widow may claim, as his legatee, to have this portion of his estate, because by the very terms of the will it was carved out and set apart from that which was intended for her. As the court below well says, From the general bequest to her he slices off an interest which he gave to his son during the life of his wife. It is clear therefore that under no circumstances did he intend his wife to enjoy that which was given away for as long a time as she remained alive. The giving of it to another for her life negatives any intention of having her receive it. If for her life it is for another, then during her life it is not for her." If then her only possible interest in this sum was as legatee under the will of her husband, this appeal could be dismissed on the ground that she had no interest in maintaining it. If, however, the decree of the learned orphans' court was wrong for the reason assigned by the appellant, to which we shall presently advert, then the testator died intestate as to so much of his estate as would accumulate at the rate of one hundred and twenty dollars per year between the death of his son Harry and the death of the appellant, and in such event the appellant, as the widow of a decedent dying intestate, would have at least such a nominal interest as would support her right to appeal. Had the will contained nothing else but the clauses to which we have already referred, the question would be ruled by Little's Appeal, 81 Pa., 190. In that case the testator gave to one daughter Martha the income of onethird of his estate "during the life of his daughter Elizabeth, or while she shall remain single." There was no gift over of this share in the event that Martha died before the death or marriage of her sister Elizabeth. We should have stated that in the present case there was no gift over of the annual income given to the son Harry in the event he died before his mother. In the case cited Mr. Justice Paxson said: "It is to be observed that there is no gift over of this income upon the death of Mrs. Little (Martha). Nor is it a gift for life; it is a gift per autre vie. It is true it may not last for the life of Elizabeth, by reason of the contingency of her possible marriage. It is, nevertheless, a gift for the life of Elizabeth, subject to being determined by her marriage. *** In this state the use of the words heirs, executors, administrators or as signs, is not necessary to pass an absolute interest in a legacy by will. Had the gift of this income been to Mrs. Little, and to her executors, administrators and assigns, it would have been no stronger than it is with the omission of those words, in the absence of any bequest over. Had the gift been of a legacy fixed in amount, there could have been no question that it would have been passed to her administrator upon her death. Is it any the less a legacy because it is payable by instalments of uncertain amount. Had it been for a fixed sum, as an annuity, there would seem to me but little doubt, under the English authorities, that it would go to her personal representatives upon her death. Here the amount is not fixed, but it is capable of being reduced to certainty. We are of opinion that the gift of this income was a vested interest during the lifttime of the testator's daughter Elizabeth, or so long as she shall remain unmarried, and that upon the death of Mrs. Little, it passed to her legal representatives for the period above stated." As this case has been followed as late as Ritter, 190 Pa., 102, it would be conclusive of our question unless that conclusion is avoided by the presence in this will of a further provision, to which we shall now advert. ment of her able counsel, but because the reasoning of the opinion seems to us to point strongly to the soundness of the conclusion reached by the learned court below. After having made the provision for his son already quoted, and a much more ample one in case he survived his mother, the will of the testator contains the following: "and the same shall not be subject to any assignment, pledge or anticipation by him, nor to any attachment issued upon any judgment, debt or claim against him, nor shall it be liable for any debts contracted by him in any way, or to any process of execution, sequestration or attachment." If we give to these words the construction contended for by the appellant, there will follow the results that the legacy given by the testator to his son Harry was not a vested one, and, there being no gift over of this income in the event of his death, a case of partial intestacy of the testator. These conclusions, as already stated, are both against the ordinary presumptions of the law, and such a construction should not be adopted unless forced by the language of the will. The argument for the appellant rests on the proposition that this case is ruled by Horwitz vs. Norris, 49 Pa., 213. The question decided in that case was that the power of appointment given by the will of a testator to his son was not well executed by the will of the donee. In that case the original will directed the testamentary trustees to collect certain rents, etc., "and to pay over the net income thereof to the maintenance and support of his son, during his natural life, so as not to be liable for his debts, etc., and from the death of his said son, to the use and behoof" of such persons within a limited class, as the said son by his last will might appoint, etc. In the present case the testamentary trustees are directed simply and absolutely to pay over a fixed and definite quarterly sum to his son. This money We have quoted at some length from is in no way devoted by the testator to the opinion, not because the correctness any particular use or purpose. With its of our reasoning thus far is assailed by payment to him the trust became fully the appellant, as we understand the argu-executed, and the money was his to do with as he chose without restriction of any kind. Moreover, this money was to be paid to him not during his own life, but during the life of another. As there is no gift over in the event of his death, how can it be said that the direction of the testator to pay this sum during the life of his own widow has been complied with, or that the trustees have discharged their obligation. The provision of the will last quoted does not necessarily require the construction contended for. Full and reasonable effect may be given to every word used in that clause, if we hold that its purpose was to relieve the executors and trustees from the annoyance of litigation, and the fund in their hands from diminution or reduction by reason of any attempt on the part of the legatee himself, or his creditors, to seize it, use it, or control it in any other way than at the time and in the manner provided for in the will. In other words, to put it out of the power of anybody to interfere with the prompt and regular payment to the son of the fixed sum named at the regular quarterly intervals provided for. We are not able to find in the presence of this provision in the will any sufficient warrant to destroy the conclusions that otherwise would be certainly drawn from the will under the authorities cited, to wit, that the testator did not die intestate as to any part of the income that would accrue from his estate during the life of his wife, and that the legacy to his son Harry was a vested one. From this it would follow that the decree entered by the learned orphans' court was correct, and the assignment of error must therefore be overruled. Decree affirmed and appeal dismissed at the cost of the appellant. Hildebrand's Estate (Hildebrand's Appeal) Decedent as endorser-New note. Where an executor who was maker of a note on which his decedent was endorser lifts the note without protest by giving for it a new note on which his co-executor is endorser, the estate can not be held liable. Appeal No. 222 of October Term, 1908, from decree of O. C. of Lancaster County dismissing exceptions to adjudication surcharging the executors. Affirmed. The Court below (SMITH, P. J.,) sustained an exception to a credit in the account of $900, for a note paid to the Strasburg Bank, and surcharged the amount against the accountants refusing to charge it against the distributive share of M. F. Hildebrand the maker a son and one of the executors of the decedent. (See 25 LAW REVIEW, 415.) This appeal was then taken and (1-5) the above action of the court assigned as error. John M. Groff for appellant. The maker of the note, M. F. Hilde drand, was admittedly insolvent and to save costs of protest and the dishonor to the name of the decedent it was not protested. It was paid by J. Ross Hildebrand with his personal check and he should be repaid, as it was a debt of the decedent. The estate was solvent and therefore the executor should be repaid. Cooper's Estate, Super., 615. John E. Malone and Wm. R. Brinton for appellees. a The amount of the note never became liability of the estate. March 3, 1910. Opinion by BEAVER, J. From the facts as found, which are practically admitted by the appellant, we are unable to see how a correct conclusion other than that of the court below could have been reached in this case. The decedent in his lifetime endorsed the note of one of his sons, who is also one of the executors of his estate. He died before the maturity of the note. Upon the day upon which the note matured, another son, also one of the executors, endorsed the note of his brother and co-executor for a similar amount, whereupon the bank which had discounted it Surrendered the note upon which the decedent was endorser. It was not protested, nor is there even an allegation that there was a waiver by the executors of demand, protest and notice. There never was, therefore, so far as that note was concerned, any direct liability on the part of the endorser to the bank or to any other person. If the executor who endorsed the note for his brother and co-executor, with which the note upon which the decedent was the endorser was lifted, had intended to hold the estate of his father liable therefore, he should have had it protested, so as to fix the liability of the estate of the deceased endorser. If the bank which held the note had allowed the date of payment to pass without protest, it would, of course, have been without remedy, against the decedent's estate. In what better position, therefore, is the executor, the brother of the maker of the note, who endorsed a new note, practically taking the place of the bank, so far as the liability of the previous endorser is concerned? He had no greater legal right to take credit in his account for the amount of the note than he would have had to have paid it to a stranger without protest, the legal liability of the estate being no greater in the latter case than in the former. The case is entirely free from difficulty, as we view it, and as the court below well remarks in its opinion, "There is no opening for an argument in this case. The conclusion follows directly from the facts." Decree affirmed and appeal dismissed at the costs of the appellants. Common Pleas--Law. C. P. OF LANCASTER COUNTY. In re Petition of Lucinda Stone for Satis faction of Mortgage Conveyance and defeasance - Satisfaction-Act of June 10, 1881. A conveyance and articles of agreement of the same date to re-convey on repayment of the purchase-money constitute a mortgage and as such will be ordered to be marked satisfied on petition under the Act of June 10, 1881, P. L., 97, where there has been no demand or payment thereon for more than twenty-one years. A sale under an execution issued on a judgment given after, but recorded before a mortgage given for purchase-money of the real estate discharges the lien of the mortgage but makes it payable out of the fund realized before the judgment. Trust Book No. 21, page 341. Rule to order satisfaction of mortgage. January 31, 1910. Opinion by LANDIS, P. J. On February 10, 1864, Henry Shaffner and wife conveyed to Alexander D. Reese a two-story brick and frame tavern house and part lot of ground, situated on the west side of Barbara street, at the crossing of the Lancaster and Elizabethtown Turnpike, in Mount Joy Borough, and also two adjoining lots of ground, with stabling, etc. This indenture was recorded on March 3, 1866. On April 20, 1864, Alexander D. Reese, for the consideration of $3,450, conveyed the one undivided half in the abovedescribed premises, subject to a dower charge of $1,058.33, and also subject to the payment of a mortgage for $761.82, to Samuel S. Grosh. It was stipulated that both the dower and the mortgage should remain a lien on the undivided half held by Reese, and not on the undivided half conveyed to Grosh, and that the same should be satisfied by Reese, his heirs, executors and administrators, without any recourse or claim upon Grosh and his heirs and assigns. On the same day, Grosh entered into an article of agreement, whereby he agreed, upon the re-payment of the full amount of the purchase money, namely, $3,450.00, to re-convey, in fee simple, the undivided half, which had been conveyed to him by Reese, back to Reese, and also entered into a lease with Reese for the said undivided half for the term of one year from the following April I, at the rent of $200.00 per annum, payable quarterly. Reese was also to pay all taxes assessed against the premises, and he might make improvements and repairs at his own expense. He was to keep the buildings insured, and even if they were destroyed by fire, he was to pay the full amount of the purchase money. On December 29, 1868, Reese, with the assent and concurrence of |