Verner Estate

Opinion op Me. Justice Hoeace Steen, Testatrix failed to make provision in her will for a contingency which happened, and, however great the temptation to supply the deficiency in accordance with what she presumably would have provided had the hiatus been called to her attention, a court is without power thus to reform the instrument. Nancy S. Verner died in 1923. By her will she bequeathed to her brother, Harry W. Verner, the sum of $5.00, and to each of her sisters, Elizabeth V. Swartz and Maria W. Lindsay one-quarter of her residuary estate. The remaining one-half she left to the Fidelity Title and Trust Company of Pittsburgh in trust to pay the income to her sisters for and during their lives and, at the death of the survivor, to the four of her nephews who were the children of her sisters, for and during their lives, in equal shares. The will then proceeded: “Upon the death of any one of my said four nephews, leaving lawful issue surviving, then I direct one-fourth of the principal of said trust fund shall be distributed and paid over to the children and heirs at law of the one so dying and thereupon the trust as to such portion of my estate shall cease and determine.” *283 Testatrix was survived by her brother and her two sisters. Elizabeth V. Swartz died in 1937 survived by a son, Warren W. Swartz, who died later that same year leaving a widow and a son by a former marriage, French Swartz Anderson. Maria W. Lindsay died in 1946; she had three sons, Frank V. Lindsay, J. Arthur Lindsay and Joseph H. Lindsay. Frank V. Lindsay is still living and has children. J. Arthur Lindsay died in 1928 without leaving any children. Joseph H; Lindsay died in 1930 leaving a widow and two sons.1 Harry W.' Verner, the brother of testatrix, died in 1946 survived by two children. . ■At the audit of the trustee’s second and partial account the court distributed a one-fourth share of the trust fund to the widow-of Warren W. Swartz and his son French Swartz Anderson to be divided equally between them; another, one-fourth share to the widow ■ of Joseph H. Lindsay and his two sons to be divided equally among the three of them; another one-fourth share to the trustee for Frank V. Lindsay for purposes specified in the will; the final one-fourth share, the income from which would have.been, payable to J. Arthur Lindsay had he survived the two sisters of testatrix, in equal shares to the personal representatives of the estates of Harry W. Verner, Elizabeth V. Swartz and Maria W. Lindsay.- The present appeals from the adjudication challenge the distribution .of the last mentioned one-fourth share. An attack is also made by French Swartz Anderson on the award of one-half of his father’s share to his stepmother. It will be observed that while testatrix provided that upon the death of any of the four nephews leming issue surviving one-fourth of the. principal of the trust fund should be paid to the children and heirs at law of the one so dying, she did not provide for the disposition of the similar one-fourth of the principal in the case of any of the nephews dying without leaving issue. The court held, therefore, that she died intestate as to the *284 principal of tbe share of J. Arthur Lindsay, and accordingly awarded that principal to the heirs of testatrix, namely, her two sisters and her brother, or, since they had died before the audit, to the personal representatives of their estates. It is the contention of appellants, Frank V. Lindsay, French Swartz Anderson, and the trustee ad litem who represents contingent remainders in posse, that with respect to the share of any of the nephews who should die without issue surviving there are cross limitations implied in the will in favor of the other nephews and their children and heirs at law. It seems to us entirely clear that there are no such implied cross remainders in this will and that, whatever conjectures might be indulged in as to the provision testatrix would have made for the contingency of a nephew dying without issue had she not failed to anticipate such an occurrence or had she desired to provide for it, it is not within the purview of the court to insert into the will a substantive disposition of her property which she herself, whether by design or inadvertence, failed to make. While judicial interpretation of a will is aimed to ascertain the intention of the testator and may therefore, in some instances, lead to the conclusion that a bequest, though not formally expressed in the will, is nevertheless implied, such an inference is justified only if the testator’s intention to that effect is so clear as to be beyond reasonable doubt; 1 it must not rest upon mere conjecture nor arise wholly from the disinclination of a court to declare a partial intestacy. It was said in DeSilver’s Estate, 142 Pa. 74, 75, 76, 21 A. 882, 883: “The rights conferred by the intestate laws are only taken away by a will which effectually disposes of the entire estate of the decedent; and, while a *285 construction is not to be adopted if it can be avoided, which will lead to an intestacy, interpretation is never to assume the proportions of reformation. The question is confined to the meaning of what the testator has said, and does not extend to the consideration of what he might have said but did not.” In that case a testator bequeathed part of his residuary estate in trust to pay the income to his brother and sister for their respective lives, the one-half to each, and upon the death of either to pay such one-half to his or her children. The brother died without issue. It was held that an intestacy resulted as to his share of the income and that there was no implied bequest of it to the sister. There are several other cases in our reports in which testamentary provisions were closely similar to those in the present will, and in all of them it was held that where the testator had thus failed to make provision for a contingency which actually happened, or to cover circumstances which subsequently resulted, a decree of intestacy was unavoidable. Reference may be made to Nebinger’s Estate, Landis’s Appeal, 185 Pa. 399, 39 A. 1049; Filbert’s Estate, 195 Pa. 295, 45 A. 733; Corr’s Estate, 202 Pa. 391, 51 A. 1032; Smith’s Estate, 210 Pa. 604, 60 A. 255; Grothe’s Estate, 229 Pa. 186, 78 A. 88; English’s Estate, 242 Pa. 545, 89 A. 680; French’s Estate, 292 Pa. 37, 140 A. 549; Kidd’s Estate, 293 Pa. 56, 141 A. 730; Knox’s Estate (No. 2), 328 Pa. 188, 195 A. 34; Jacobs’ Estate, 343 Pa. 387, 22 A. 2d 744. In Grothe’s Estate and in French’s Estate, supra, the Court, construing the wills there under consideration, refused to find implied bequests or cross limitations in the absence of language disclosing, either expressly or by clear implication, any such intention on the part of the testator. The interpretation of such wills is not to be controlled by the mere mechanical application of the maxim that a testator presumably does not intend to die intestate as to any part of his estate, for, as in some other instances of contradictory *286 maxims, there exists a rule oí construction of equal force and dignity which runs counterwise, namely, that the heir at law is not to be disinherited except by express words or necessary-implication: see Bruckman’s Estate, 195 Pa. 363, 367, 45 A. 1078; Grothe’s Estate, 229 Pa. 186, 190, 78 A. 88, 90; French’s Estate, 292 Pa. 37, 41, 140 A. 549, 550. Appellants, pointing out that testatrix deliberately cut her brother Harry off with a nominal gift of $5, argue that she could scarcely have intended that he or his children should now obtain a comparatively large portion of her estate. This contention, however, is without merit because, even though an heir be expressly excluded by a will, he takes, nevertheless, if an intestacy results, since his taking is not by reason of the will but, under the intestacy, by operation of law: Bruckman’s Estate, 195 Pa. 363, 45 A. 1078; Gibbons’s Estate, 317 Pa. 465, 468, 177 A. 50, 51; Habecker’s Estate (No. 1), 43 Pa. Superior Ct. 86. As the intestate law applied' from the moment of the death of testatrix as to all property not disposed of by her will, the-heirs entitled are her brother and two sisters who were living at that time: Knox’s Estate (No. 2), 328 Pa. 188, 191, 195 A. 34, 35; Leopold Estate, 356 Pa. 543, 548, 52 A. 2d 458, 460; McFarland Estate, 155 Pa. Superior Ct. 466, 38 A. 2d 490. They are entitled to immediate distribution of' théir respective portions because, unlike the situation in Lockhart’s Estate, 306 Pa. 394, 405, 159 A. 874, 877, 878, where the Coúrt held that the whole principal of the estate had to be preserved intact because'the beneficiaries were entitled to payments of income out of the estate as an entirety, in the present case testatrix specifically provided' for distribution of a share of principal on the death of each nephew leaving issue surviving, so that it was obviously her intention that each such share was to be treated as a separate and distinct portion detachable from the estate as each nephew died. *287 It is urged by appellants that even if an interpretation of the existence of cross limitations be rejected the share of J. Arthur Lindsay- should nevertheless pass to the children of the four nephews because of the provision of section 15(c) of the Wills Act of 1917, P. L. 403, that “Unless a contrary intention shall appear by the will, ¡such a real or personal estate, or interests therein, as shall be comprised or intended to be comprised in any devise or bequest in such will contained, which shall fail or be void by reason of the death of the devisee or legatee in the lifetime of the testator, or by reason of such devise or bequest being contrary to law, or otherwise incapable of taking effect, or which shall be revoked by the testator, shall be included in the residuary devise or bequest, if any, contained in such will. In any case where such devise or bequest which shall fail or be void, or shall be revoked as aforesaid, shall be contained in the residuary clause of such will, it shall pass to and be divided among the other residuary devisees or legatees, if any there be, in proportion to their respective interests in such residue.” This provision has no application in the present case because there is no devise or bequest “incapable of taking éffect” within the meaning of the statute';'section' 15(c)' of the Wills Act does not affect an undisposed of share: Knox’s Estate (No. 2), 328 Pa. 188, 192, 195 A. 34, 35, 36 ; Rickenbach Estate, 348 Pa. 121, 125, 34 A. 2d 527, 529. 2 *288 The will of testatrix provided that upon the death of any of the nephews leaving lawful issue one-fourth of the principal of the trust fund should be distributed and paid over to the “children and heirs at law of the one so dying.” It is argued by French Swartz Anderson that the term “heirs at law” should be regarded as synonymous with “children”. Being used, however, in addition to the word “children”, it must be given a significance of its own; it cannot be ignored as mere surplusage or duplication. Since a surviving wife is a statutory heir of her deceased husband (Barnard Estate, 351 Pa. 313, 315, 41 A. 2d 578, 579) it follows that the court was right in recognizing the widows of Joseph H. Lindsay and Warren W. Swartz as beneficiaries entitled to share with the children the respective portions of the trust fund of which the income had been bequeathed to their husbands. Decree affirmed; costs to be paid out of decedent’s estate. Footnotes [1] For example, where there Is a bequest over if the life tenant should die without leaving issue there is an implied bequest to the issue should there be any: Beilstein v. Beilstein, 194 Pa. 152, 45 A. 73; Lippincott’s Estate, 276 Pa. 283, 120 A. 136; Cope Estate, 353 Pa. 306, 45 A. 2d 52. [2] Tie law in this respect will be changed by the Wills Act of 1947, (Act No. 38)- which goes into effect January 1, 1948, and applies only to the wills, .of persons: dying on or after that date. That act provides in section 14 (9) .that “A devise or .bequest not being part of the residuary estate which ... is undisposed, of ...shaU (under certain specified circumstances) be included in the residuary devise or bequest; if any, contained in the will, and in section 14' (10) that when such a devise or bequest shall be included' in a residuary clause of the will it shall pass to the other-residuary devisees or legatees, if any.there be, in proportion to their respective shares or interests in the residue. , .