Reisher's Estate
Reisher's Estate
Opinion of the Court
Opinion by
The point at issue here can be understood only as we have before us the main features of the will and codicil,' which together give rise to the dispute. The will of the testator, .Samuel Reisher, late of Chambersburg, dated July 6,1892, contains the following devise: “The Smith property on Main Street adjoining Wm. M. Wallace’s Estate on the South, and Adam Christ on the North, I give, devise and bequeath to my two sons, Daniel S. and Jacob Sener, they to receive the rents, issues and profits thereof during their lives, to be divided equally between them, after all taxes, repairs and insurance is deducted off. Daniel S. to manage said property, and to account to Jacob S., for his share, and in event they can not agree, upon petition to the Judge of the Orphans’ Court by
In searching for the intention of the testator, which, of course, when ascertained, must' govern, whatever difficulty is encountered arises because of the inapt way in which he devises upon the death of the widow the remainder interest in the one-half of the Smith property to the son Jacob S. The language of the codicil is, “and at her death the said one-half devised to wife is given to my son Jacob S. under the same restrictions as I have given him the other one-half in the body of my will.” This reference by the testator to the restrictions in the body of the will is to be given the same force and effect as though the restrictions had been set out in totidem verbis immediately following the gift itself, since will and codicil constitute but one instrument and are to be construed together. The question therefore is what are the “restrictions” in the body of the will to' which the gift to Jacob was subjected? Answer to that question can be returned only as we first ascertain what the testator understood by the word “restrictions,” as he here employed it. We may dismiss all idea that he used it in a technical sense, for it has none. In its popular sense it means limitation or qualification of something said, and to give it any effect in the connection here used it must be so understood and applied, and even then with more or less liberality of construction. Turning to- the will proper as distinguished from the codicil, what is there appearing there that testator could have understood as a restriction on the interest given to his son Jacob S. in the Smith property? Were it not for the fact that by the very codicil whose provisions we are now considering the devise to Daniel S. and at his death to his youngest daughter of a half interest in the Smith property had been expressly revoked, it might with no little force be
Reference
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- Wills — Construction—Intention—Codicil — Reference to will — Incorporation by reference — Revise subject to “restriction’’ in will —Revise by implication. 1. Where a codicil refers to restrictions in the body of the will such reference is to be given the same force and effect as though the restrictions had been set out in totidem verbis immediately following the gift itself, since will and codicil constitute but one instrument and are to be construed together. 2. In its popular sense the word “restriction” means limitation or qualification of something paid. 3. A devise, although not formally expressed in the will may be implied where it is needed in order to carry out the intention of the testator; but such implication never arises where it contradicts some expression of intention, and only when it affords such a strong probability that an intention to the contrary cannot he supposed. 4. Testator devised certain real estate in equal shares to his two sons for life, and in the event of the death of either son, gave one-half in remainder to the youngest daughter of the first son and the other'half to the children of the second son. By codicil testator provided “the whole bequest in my will to my first son and at hi9 death to his youngest daughter is hereby revoked......I devise ......one-half of the......property (in question) to (testator’s wife,- naming her), during her natural life, and at her death the said one-half devised to wife is given to my (second) son...... under the same restrictions as I have given him the other half in the body of my will.” Held, (1) the testator in subjecting the gift in the codicil to the same “restrictions” as he had imposed in the will had reference to the provision by which he gave to the children of the second son upon their father’s death a remainder in fee in the one-half of the property, and (2) the children of said second son took by implication a remainder estate in fee in the whole of the property in question.