In

by them and makes a clear distinction
between real and personal estate.
that case the court was speaking of the
contention of the plaintiff in error that
the testator had manifested his intention
that his daughters Susanna and Rosanna
should recover out of his real and per-
sonal estate of whatever description,
whether bequeathed or not, no more than
fifty dollars each, and, therefore, that
the property, whether real or personal,
must be divided in the same manner as
if he had died intestate, with the excep-
tion that by force of his declared in-
tention his two daughters by his first
wife were excluded. "And," said Rog-
ers, J., “if this was the case of personal
property, as appears by the case cited
(Vachell vs. Breton, 5 Bro. P. C., 51),
there would be something in the argu-

der. Henry H. Bender, Benjamin H. Bender, and one niece, Eve Ann Bender, as her next of kin. By her will she gave all her estate, real, personal and mixed, to her sister, Anna E. Habecker, for life, and after her death created an active trust as to three tracts of land, which was to continue until the death of all of certain grandnephews and grandnieces. At the conclusion of the clause of her will, relative to the conversion and distribution of the trust estate at the death of the grandnephews and grandnieces, occurred these words: "Benjamin H. Bender, a nephew, and his family, are not to participate in the distribution of my estate for reasons well known to them." In another part of her will she made two bequests and a devise of a small tract of land upon the death of Anna Habecker. And at the conclusionment. of her will, after bequeathing the horses owned by her to her sister, she declared, "All other personal property may be sold by my executors and trustees as may be found best for the estate." The fund for distribution in the proceeding out of which this appeal arose was personal estate remaining after payment of all just debts and legal charges and legacies, which the testatrix did not dispose or by her will; and, under the plain provisions of our intestate law, it was properly distributed to her next of kin, including Benjamin H. Bender, unless the clause above quoted was effective to exclude him. It is not contended that if it had been real estate the words would have been effective for that purpose, but it is argued that a different rule should apply in the case of personal estate. This contention is not based on any provision of the Act of 1833, and it is difficult to see upon what principle it could be held that the words which would be ineffective to prevent the operation of the statute upon the real estate as to which the testatrix died intestate would prevent its operation upon the personal estate as to which she died intestate. Much reliance is placed by appellant's counsel upon the language of the opinion in Bender vs. Dietrick, 7 W. & S., 284. Indeed, they say the case holds squarely to the position taken

But this is real estate, as to which a different rule prevails. It is a maxim which applies here as well as in England. that an heir-at-law can only be disinherited 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." Inasmuch as personal estate was not involved in the case, this parenthetical remark upon which counsel relv is rather a slender foundation for the supposition that the case would have been decided differently if personal estate had been involved. The later Pennsylvania cases do not recognize the distinction which the learned counsel contend for, but many of them state the rule as applying to personal as well as real estate. A leading case is Hitchcock vs. Hitchcock, 35 Pa., 393, where the court, by Woodward. J., said: “A man may, by his will, take his estate out of the intestate statutes, by devising it to others than his heirs at law, but if he do not, he cannot repeal or control those statutes. However clearly the particular intent, that Celinda should enjoy only $2,000 of his estate, may have been expressed, it must give way to the general intent, which existed at the death of the testator, that whatever was not specifically devised should be distributed under the intestate laws. For such is another rule

Court, said: "The gift is to a class, to wit: those upon whom the law would cast the inheritance in case of intestacy; the time of distribution determining who are to take and the quantum of the gift to each, except that neither Mrs. Murdock, who otherwise would take, and her two children who otherwise might take, are expressly excluded from participation. Since the gift is to a class, no part of it fails by reason of the subsequent exclusion by codicil of certain others, who but for the exclusion would have taken." The decision was put distinctly upon the ground that these words were a disposition of the residuary estate and, therefore, the testator did not die intestate as to that property. The distinction between such a case and the present is apparent, and it was made the ground of decision in Hancock's Appeal, supra, as will appear by the opinion

of interpretation found in all the text writers, that where there is a general intent and a particular one, and these are inconsistent, the particular is to be sacrificed to the general intent. And still another rule applies here--that merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object." It is argued that this statement of the rule is a departure from what had been declared in other cases; but it has been recognized and applied in many later cases, and we do not see how the conclusion can be avoided that it correctly states the true principle, namely, that rights conferred by the intestate laws in personalty, no less than in real estate, can only be taken away by a will disposing of the property. Many of the cases have gone to a considerable extent in construing words so as to prevent intestacy. An illus-of Mr. Justice Green on the motion for tration will be found in Jacob's Estate, 140 Pa., 268. But where a decedent dies intestate as to any property, the statute comes into operation. See Hancock's Appeal, 112 Pa., 532; Gorgas's Estate, 166 Pa., 269; Kane's Estate, 185 Pa., 544; Bruckman's Estate, 195 Pa., 303. at p. 307; Will of Louisa Rorer, 7 Phila., 524. "It takes an intelligible will, if not a plain one, to disinherit, either in whole or in part, those who by law are entitled to the succession. Every man has an undoubted right to give his property to whom he pleases; but when the usual, natural, just, and legal course of distribution is to be changed, it must be done by words at least tolerably free from ambiguity." Per Black, C. J., in Weber's App., 17 Pa., 474.

Much reliance has been placed by appellant's counsel on McGovran's Estate, 190 Pa., 374. There the testatrix directed as follows: "The rest and residue of my estate I direct to be distributed by my executor under the intestate laws of Pennsylvania, but in no event is M. or her three children and J. or her two children to receive any portion of my estate in any form." This was held to be an immediate gift of the residuary estate. Judge Stewart, whose opinion was adopted by the Supreme

The

re-argument, at pages 542 and 543. English case of Bund vs. Green, L. R. 12 Chan. Div. 819, cited by counsel viewed with reference to its special facts may not be in entire accord with our decisions, particularly Hancock's Appeal, but the principle enunciated is not in conflict with that stated in our cases. for the court, upon a consideration of the whole will, found that according to the true construction of the will the declaration of the testator amounted to a gift in favor of those persons who take by law upon a distribution of personalty under the statute. We are unable to conclude that the clause of the will of this testatrix under consideration had that effect.

The decree is affirmed at the costs of the appellant.

tate devised in trust. They assert as their authority for these payments the following clause of the will: "The executors and trustees are hereby further authorized and empowered to sell sufficient property or proceeds of crops to pay any debts and expenses, collateral tax, and legacies bequeathed, before any division is made of said rents, issues and profits.'

Unless otherwise directed by the provisions of the will or the intention of the testator to the contrary is plainly inferable there from a collateral or succession tax is enargeable against and payable out of the legacies by the respective legatees: Brown's Estate, 208 Pa., 161. This statement of the law clearly implies, if authority be needed for so plain a proposition, that the intention of the testator, plainly inferable from his will, to impose the burden upon his residuary estate in relief of the legatees and devisees, will be carried into effect. Here the residuary personal estate was ample for the purpose, and we entertain no doubt that, so far as payment of the tax on the legacies is concerned, the executors acted in accordance with the intention of the testatrix plainly manifested in the above clause of her will.

penses was broad enough to include the payment of the taxes charged upon the legacies and that it was apparent from a proper construction of the will "that the testator, whatever inequality it may produce, intended that the tax should be charged against the income of the estate before distribution should be made to the legatees." In the will under consideration the language of the trust is: "To rent, farm, or crop said farms and the Mill property to the best advantage, and from the rents, issues and profits thereof to pay (1) all taxes, repairs and insurance, and keep the properties in good condition; (2) to divide the balance, after deducting necessary expenses and compensation, into three equal parts or shares." If this clause stood alone it might be argued with plausibility that the collateral inheritance taxes, as well as other taxes, were intended to be deducted from the gross income of the trust estate before distribution of the net rents, issues and profits. But the clause does not stand alone, and in arriving at the intention of the testatrix all provisions of the will pertinent to the question must be considered. Thus viewing the will, it is seen that the testatrix had in mind the collateral inheritance tax, which in one clause But it is contended that in paying of her will she ranked with debts, exthe collateral inheritance tax on the cor- penses, and legacies, and taxes, which pus of the real estate devised in trust in another clause she ranked with repairs out of this fund derived from the sale and insurance of the trust property. of the residuary personal estate the ex- Both clauses of the will may be reconecutors contravened the rule laid down ciled and carried into effect by construin Brown's Estate, supra, which is thus ing the latter to relate to ordinary local stated in the syllabus: "Where the cor- taxes on the property. The immediate pus of an estate is committed to the ex- context tends to show that this is the ecutors in trust to collect the income, sense in which she used the term, and ' and after taking out any and all neces- this conclusion is strengthened by a consary expenses, to divide the said net in- sideration of the general and unqualified come in equal shares among' certain provision relative to the collateral inpersons named for life, the collateral in-heritance tax. The learned judge of heritance tax, New York state transfer tax and United States war tax are not payable out of the principal of the estate, but are to be deducted by the trustees from the gross income, after which the net income is to be divided in equal shares among the life tenants." This This decision was put upon the ground that the direction to "deduct any and all ex

the orphans' court well says: "From the debts and expenses there could have been no escape even if the testatrix had made no reference to them. There were ample funds with which to pay the legacies, and a special provision for them was unnecessary, but recognizing a possibility of a change in her estate between the time of the writing of her will and

Estate of Anna E. Habecker, Deceased (No. 2).

Appeal No. 36 of October Term, 1909, by Jacob H. Bender, from decree of Ó. C. of Lancaster County.

July 20, 1910. Opinion by RICE, P. J.

It is agreed by counsel that this case is in all respects parallel to the appeal in the Estate of Mary Habecker, deceased, in which we herewith file an opinion. For the reasons there given, the decree is affirmed at the costs of the appellant.

C. P. OF LANCASTER COUNTY.
Muller vs. Muller.

Divorce
This view of Divorce- Desertion - Non-resident re-