Klapp's Estate

Opinion by Rice, P. J., It is quite true, as the appellant’s counsel says, that a testator is not obliged to provide for every contingency, and it is not within the province of a court to do this for him even to avoid partial intestacy, whether such omission was made designedly or through lack of forethought. But it is equally permissible to say that no presumption of an intent on the part of a testator to die intestate as to any part of his property is to be made, when his words, as found in his will, can fairly be construed to dispose of the whole of it. The presumption, if any is to be made, is the other way. But aside from the rule or canon of construction which favors testacy, we are unable to escape the conclusion from a careful perusal of this will, having due regard to its whole scheme, that the testator intended to dispose of all his property and to provide for every contingency that might happen. Whether he succeeded in providing for the contingency which has happened, namely tho death of his daughter without children after the death of his son, is another question, but in determining it we are justified, both upon principle and authority in keeping this general intent in view. The clause, “ but if my daughter should die unmarried, then I give, devise and bequeath my properties to my son and his said children each to take an undivided moiety ” — construed as a similar clause in the second item of the same will was construed in Goodman’s Appeal, 199 Pa. 1,. — would cover the case, unless, as is contended by the appellant’s counsel, it is applicable only to the contingency of her death before her brother. The position of the clause in the will lends plausibility to this contention, but aside from that consideration all the arguments are in favor of the conclusion that the testator intended the devise over to take effect in the event that Catharine died unmarried or married without children, whether her death occurred before or after the death of Joseph. The latter construction avoids the conclusion that the testator died intestate as to any part of his property, and it is in harmony with the whole scheme of the will as clearly manifested in other provisions, which was that in the event of his daughter’s death [154] without leaving children, her share of the estate should go over to his own blood. In construing wills it is not always necessary for the court to consider the words exactly in the order in which they are placed, if a different arrangement will better answer the apparent intent of the testator: Ferry’s Appeal, 102 Pa. 207 ; Stevens’s Estate, 164 Pa. 209. “ It seems, therefore, that, although the words as they stand are not absolutely senseless or contradictory, transposition will be made if it be required to effectuate an intention clearly expressed or indicated by the context. Eden v. Wilson is an instructive example of the doctrine:” 1 Jarman on Wills (5th Am. ed.), *502. But this is not a case where transposition of words is necessary; it is rather a case where we are justified in holding that the clause in question is not to be construed as applying exclusively to what preceded it in the' draft of the will. The words are general and although not the best that might have been chosen, are sufficient to provide for the ultimate disposition of the property in the contingency that has happened. Having made such general provision in a preceding part of his will, the testator evidently deemed it unnecessary to repeat it in the second item of the residuary clause. It would have added to clearness had he done so, but notwithstanding the earnest and able argument of the appellant’s counsel, we are not convinced that the position of the words is of such significance as to warrant us in holding that the devise over was intended to be of no effect if Catharine survived Joseph. It is argued that even if the devise over is to be construed as taking effect whether Catharine died before or after Joseph, still it did not take effect, because she did not die unmarried. The gift was to his daughter for life with remainder to her children “if she was married and left any,” but if she “ should die unmarried,” then over. The general rule is that words occurring more than once in a will shall be presumed to be used always in the same sense, unless a contrary intention appear by the context or unless the words be applied to a different subject; 2 Jarman on Wills (5th Am. ed.), *842. We find nothing in the context to show that the words of the will last quoted were used in a different sense in the residuary clause from that in which they were used in the second item of the •will. Nor does the subject of the gift require a different con [155] struction. In a case involving the construction of the latter item, the Supreme Court said: “ The clear intention of the testator was that the bequest to his daughter Catharine for life with remainder to her children should go to his son Joseph and his children in the event that Catharine died unmarried, or married without children:” Goodman’s Appeal, 199 Pa. 1. ¥e regard this as a controlling authority upon the precise question last stated. Decree affirmed and appeal dismissed at the costs of the appellant.