#### Johnson *et al. versus*Johnson *et al.*

1. A provision in a will was: “The residue of my estate, etc., I give, bequeath, and dispose of as follows: I estimate my real estate to be worth $6000, which amount I give and bequeath to my twelve children, to be equally divided between them, to share like and like (naming the children) each $500. I direct and devise that my sons John, Jesse, and David, have the preference and refusal to buy the shanes of each of the above-named parties, to be paid by them at the rate of $100 iper year for each and every share, the above distribution to be made as soon after my death as would seem reasonable, by complying with the above conditions of the said John, Jesse, and David. I further give and bequeath to them, etc., all my farming utensils, etc., but if neither of my sons, John, Jesse, and David, do not comply with the foregoing conditions, I direct and devise that either of my other sons to have the same chances and privileges.” Jesse died in the testator’s life. John -and David accepted the devise, and tendered the $500 to each of the others. It was declined by them. Two of the children brought ejectment for two-elevenths of the land. *Held,*that by the acceptance and tender the estate became personal. The plaintiffs had no title to the land. It vested in John and David.

March 25th, 1875.

-Before Ag-new,C. J.,Sharswood,Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Elk*County, of January Term, 1875, No.. 9.

This was an action of ejectment, brought February 28th, *2581872, by Benjamin Johnson and M. D. Johnson, against John Johnson, David Johnson, and others, for two undivided elevenths of several tracts of land, containing in the whole about 2060 acres.

The case was tried, August 7th, 1872, before Wetmore, P. J.

The plaintiffs claimed, as two of the hems at law of Ralph Johnson, deceased, Avho died seized of the land in controversy. The testator had twelve children, of whom the plaintiffs are two, and the defendants Johnson two. Jesse, one of the sons named in the will, died in his father’s lifetime.

This was the plaintiffs’ case.

The defendants gave in evidence the will of the decedent, dated October 27th, 1866, and proved_ October 3d, 1867, as follows:

.... “After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath, and dispose of as follows, to wit: I estimate my real estate to be worth six thousand dollars, which amount I give and bequeath to my twelve children, to be equally divided between them, to share lilce and like, that is to say, to my sons Benjamin, Marmaduke, John, Ralph, Jesse, and David, each five hundred dollars. To my daughters, Ann, Jane, Elizabeth, Edith, Emeline, and Amanda, each five hundred dollars. I direct and devise that my sons John, Jesse, and David to have the preference and refusal to buy the shares of each of the above-named parties, to be paid by them at the rate of one hundred dollars per year for each and every share, the above distribution to be made as soon after my death as would seem reasonable, by complying with the above conditions by the said John, Jesse, and David. 1 further give and bequeath to them, the said John, Jesse, and David, all my farming utensils, etc. But if neither of my sons John, Jesse, or David, do not comply with the foregoing conditions, I direct and devise that either of my other sons to have the same chances and privileges of John, Jesse, and David. I desire and direct that my son Ralph shall have the same rights and privileges in my saw-mill, which is part of my estate as above estimated, as he has had heretofore. I further give and bequeath to my daughters, Ann, Jane, Elizabeth, Edith, Emeline, and Amanda, each five hundred dollars, as soon after my decease as would seem reasonable, out of my goods, chattels, debts, ready money, efiects not herein distributed. I give and bequeath to my daughters Edith and Amanda all my household furniture, etc. If any surplus money should remain after the within bequests are all satisfied, I give and bequeath that it be equally divided *259amongst all my children, to share and share alike. In case of any of my said children shall depart this life before such time as the part or portion of him, her, or them so dying, become payable, then and in such case, the part or portion of him or them so dying shall go to his or her heirs.”

They gave evidence that they had accepted the real estate, in accordance with the will, and had tendered to each of the plaintiff's $500, which they declined to accept.

In rebuttal, the plaintiffs called witnesses, who variously estimated the value of the land at from $50,000 to $70,000.

The defendants’ witnesses estimated it at from $20,000 to $28,000.

The Court charged:

“ If the jury believe from the evidence that John Johnson and David S. Johnson accepted the real estate of their father, Ralph Johnson, under his will, and tendered to the plaintiffs each the one-twelfth of the six thousand dollars, at which the real estate was valued by Ralph Johnson in his said will, the plaintiffs cannot recover in this suit. The interest of the plaintiffs in the estate of their father then became personal, and they had no title to the real estate ou which they can maintain ejectment ”

The verdict was for the defendants. ■

The plaintiffs sued out a writ of error and assigned the charge for error.

*Gf. A. Rathburn*and *li.*Souther, for plaintiffs in error.

The will throughout shows an intent to equalize all the testator’s heirs, and it should therefore be construed to produce that result: Horwitz *v.*Norris, 10 P. F. Smith, 261; Fahrney *v.*Holsinger, 15 Id., 388; Amelia Smith’s Appeal, 11 Harris, 9; French *v.*Mcllhenny, 2 Binney, 20. To effect a conversion the will must direct it absolutely, independently of contingencies or discretion: Nagle’s Appeal, 1 Harris, 260; Henry *v.*McCloskey, 9 Watts, 145; Bleight *v.*M. & M. Bank, 10 Barr, 131.

*J.*6r. *Hall*and *Gf. A. Jenks,*for defendants in error.

No words are to be rejected if they can take effect: Horwitz *v.*Norris, *supra.*The intent is to be discovered from the words read in the light of surrounding circumstances at its date: Postlethwaite’s Appeal, 18 P. F. Smith, 478 ; 1 Jarman on Wills, 352, note. “ Devise” applies to lands, and technical words are to be taken in their technical sense: Doebler’s Appeal, 14 P. F. Smith, 9.

Judgment was entered in the Supreme Court, April 1st, 1875.

*260Per Curiam :

This will of Ralph Johnston is singular, yet its meaning is not so totally obscure as to prevent a fair interpretation of it, which we think the Court below gave it. He devised the residue of his real estate to his twelve children to be divided equally between them at the valuation placed upon it by the testator, subject to a right of election by his sous John, Jesse, and David to take it at the valuation, and pay the other sons and daughters their respective shares of the valuation. The Court, therefore, properly submitted to the jury the question whether they had made this election, with the instruction that if they accepted the land and tendered the valuation-money the title was vested in them.

Judgment affirmed.