KIMMEL vs. WAGNER.
It is not error to admit parol evidence that a bequest to the “German Elder-ship” was intended for the “Board of Trustees of the German Eldership of the Church of God.”
Error to Common Pleas of Schuylkill County. No 103 January Term, 1873.
This was an action of ejectment for ninety acres of land in West Brunswick Township, Schuylkill County. George Kimmel under whom all parties claim, owned the farm in controversy. lie made his will, and Nov. 12, 1865 died leaving a widow, but no children. He left brothers and sisters and the children of deceased brothers and sisters surviving him, and they are the plaintiffs in this ease and claim the property did not pass by the will, which is as follows:
A Will or Testament, January 1, 1865, in the name of God. Amen.
Because I am still well and in good mind, I have regarded it as good to do something with my worldly possessions in the manner and way it may be most pleasing to God.
Firstly, that my body be brought to the grave in a Christian manner and way; further it is my will that all my property shall be used for God’s work and the poor, with the exception that my wife Sarah, shall have the house in which we now live, after my death as long as she lives or is called by my name, and (she) shall draw the interest from Two Thousand Five Hundred Dollars yearly, and shall also have a cow and feed, and pasturage, yearly, she shall also have the household furniture, she shall also have as much wood as she needs, the place here where I now live is not to be sold, shall be leased and the rent to the poor, or for God’s work. The little meeting house, in Orwigsburg, shall remain too for religious services and burial of the dead. The Beierli now lives shall not be sold either, it shall remain for the poor, the house where Solomon Rith now lives, my wife to have for herself, if I do not sell it during my lifetime. I desire that my executors shall settle everything, collect the money, and transfer (give it over,) it to the German Eldership, it shall use for the work of God, and the poor; before all for the poor of my relationship (or connection) where there are poor, and of the relationship of my first wife where such are, they shall have the first *192right. When the money is collected then it shall be put out at interest, and the preacher of the congregation here, if not enough is paid that he can live, the remainder shall be applied to mission. My wife shall have to the fifth part of the apples. It is also my desire that vendue shall be made of the agricultural implements and cattle, but not of the household furniture, that belongs to the wife, she may do with it what the pleases.
The Nebraska laud shall be sold too.
Witnesses,
JOSEPH R. MOYER, Sig. GEORGE KIMMEL,
THOMAS HARTLING, SAMUEL MOYER, Executor, Sr.
The defendants represent “The Board of Trustees of the German Eldership of the Church of God” and claim the property under the will. At the trial the Court allowed witnesses to testify that “The German Eldership of the Church of God” was commonly spoken of as “The German Eldership.” The Court directed a verdict for plaintiffs, but reserved a question whether under the construction of the will the defendants were not entitled to judgment non obstante veredicto. Judgment was entered for defendants subsequently. Plaintiffs then took a writ of error complaining of the admission of the testimony as to the name “German Eldership” and the entry of judgment for defendants.
John W. Ryon, Esq., for plaintiffs in error,
argued the will does not dispose of the land. The land is not to be sold, and therefore a perpetuity would be created. Hillyard vs. Miller, 10 Barr, 326.
The will is unintelligible and parol evidence is not admissible to explain it; Kelly vs. Kelly, 1 Casey, 460.
The objects of testator’s bounty are too indefinite and uncertain for it to be executed. 2 Story’s Eq., 560. Doe, d. Phillips vs. Aldridge, 4 Durnford & East, 264; James vs. Allen, 3 Mer. 17. Doe; d. Toone vs. Copestock, 6 East, 328; 1 Jarman on Wills, 193 and 194. In such case it goes to the next of kin or heir at law. 2 Williams’ Executors, 2nd Am. Ed., 787; Ellis vs. Selby, 1 My & Craig, 286; Trustees Baptist Ass. vs. Hart, 4 Wheat, 1, 33, 89, 43, 45; Gallegs vs. Atty. General, 3 Leigh, 450; Greene vs. *193Dennis, 6 Con., 293; Jackson vs. Hammond, 2 Caine’s Cases in Error, 337. The point of law was not well reserved. Wilson vs. Tuscarora, 1 Casey, 317; Irvin vs. Wickersham, 1 Casey, 316.
Messrs. Hughes & Farquhar, contra.
The intent of the testator to dispose of his whole estate is manifest from the “four corners” of his will.
A personal gift to a charity is never, a perpetuity although inalienable. City vs. Girard, 9 Wright, 9.
The devise in this case carried an absolute estate. Silknitter’s Appeal, 9 Wr„ 365; Brewster vs. McCall, 15 Conn, 274; Trustees vs. Peaslee, 15 N. Hamp., 317; Minot vs. Boston Asylum, 7 Metcalf, 416. The act of February 15, 1860, Sect. 6, P. Laws 127, incorporating the Board of Trustees of the German Elder-ship of the Church of God provides “that no misnomer of the said corporation shall defeat or annul any gift, grant or devise, or bequest to, or from the said corporation ; Provided, that the intent of the party or parties shall sufficiently appear on the face of the grant, will or other writing, whereby an estate or interest is intended to pass to or from the said corporation.”
The words “as to all my worldly estate” in the beginning of a will unconnected with any particular devise show an inténtion to dispose of the whole estate, but will not carry an estate that is clearly omitted; Busby vs. Busby, 1 Dall, 226; Gernet vs. Lynn, 7 Casey, 94; Mutters Estate, 2 Wright, 315; Musselman’s Estate, 3 Wright, 469.
A devise of the proceeds is a devise of the estate itself; Carlyle vs. Cannon, 3 Rawle, 489; Anderson vs. Greble, 1 Ash, 136; Smith vs. Fulkinson, 1 Casey, 109; Sill’s Appeal, 1 Gr., 235; Brown’s Estate, 2 Wright, 293.