Earle Estate

Klein, J., This case furnishes additional evidence that the administration of the law is, — 444 — at best, an imperfect science. We have before us for interpretation the will of George H. Earle, Jr., himself a noted lawyer and brilliant financier, who in the exercise of his wisdom and judgment, accumulated a large fortune. The will was witnessed, and apparently prepared, by H. Edgar Barnes, testator’s friend and attorney, who was also a renowned lawyer and served with distinction as a justice of the Supreme Court of this State. We should certainly expect to find this instrument free of all ambiguity and clearly expressive of testator’s intent. Yet the simple event of the birth of a grandson confronts us with an extremely puzzling question of construction. If we could acquit our responsibility in this case with regard for considerations of sentiment alone, we should certainly accept the contention of the able guardian ad litem appointed by the court to represent the interests of this infant grandson and sustain his exceptions to the adjudication. A purely objective study of the will from its four corners, however, convinces the majority of this court that the auditing judge has correctly decided the issue adversely to the claim of the grandson. In our opinion, there is no need to dwell upon the so-called “rule of convenience”; we base our decision upon the intention of testator as appears from the language in his will. We agree with the learned auditing judge that this case falls within the general rule of law holding that in any immediate gift to a class, the class closes as of the date of testator’s death and we find nothing in the provisions of this will that denies the application of the rule. Careful examination of item 5 of the will fortifies us in this conclusion. This item is restricted to gifts to certain of testator’s children and is divided into three separate paragraphs. Each of these paragraphs begins — 445 — with the following language, which is repeated three times without change: ■“In the event that my estate, after the payment of taxes, shall at least amount to the net sum of five million ($5,000,000) dollars or over . . Since the same language is repeated as a preface to each of the three paragraphs comprising item 5, we must assume that testator intended it to have exactly the same meaning each time it was used: Blackburne’s Estate, 290 Pa. 55 (1927) ; Klapp’s Estate, 19 Pa. Superior Ct. 150 (1902) ; 3 Jarman on Wills, p. 2146, Rule XVIII (7th ed.).. Let us therefore look more closely at the substance of this item in its entirety. The first paragraph provides for an increase from $100,000 to $300,000 in the trust for a granddaughter, Louise Dilworth Beggs, if the expressed condition is met; the second, an increase in the trust for a second granddaughter, Edith Earle Lee, from $200,000 to $500,000 upon the same condition. The third paragraph of this item, which contains the gift in question, provides for the creation of trusts in the sum of $100,-000 for “each and every male child of my sons who shall by birth inherit and bear the name of Earle”. In our opinion the time at which it was necessary to determine whether the net estate, after payment of taxes, “shall at least amount to the net sum of five million ($5,000,000) dollars or over” was at the audit of the executors’ account. It was at that time that the extent of the estate’s liability for taxes and the amount of the claims of creditors 'were established with certainty. It was then that the “net” value (“sum”) of the estate was ascertained. Any other construction might give rise to speculation whether the continuance of all of the trusts created under item 5 does not depend upon the maintenance of a minimum net value of $5,-000,000 at all times. This might necessitate frequent — 446 — reappraisements of the entire estate and, possibly, changes in the structure of the trusts. It might also produce an anomalous situation which would necessitate the creation of trusts for some of the after-born grandsons and not for others, depending on the value of the estate at the time each of such grandchildren was born. Such a result would be highly impractical and was obviously not contemplated by testator. There is nothing in this will to suggest that testator intended the creation or continuance of these trusts to depend on future fluctuations in the value of the assets comprising the residuary estate. It seems clear to us that when, at the time of the audit of the executors’ account in 1929, it was established that the net value of the estate was $5,000,000 or more, it became mandatory for Judge Henderson, the auditing judge, to direct the trustees to set up the trusts for the two granddaughters, as provided in item 5 of the will. This he did. Any subsequent diminution in the value of the residuary trust could not affect the continuance of these trusts in any manner. Conversely, if the net estate at the time of the audit of the executors’ account had not amounted to $5,000,000, the additional trusts for the two granddaughters would have fallen and no subsequent increase in value could have revived them. The adjudication of Judge Henderson directing the creation of these trusts at the time of the audit of the executors’ account was final and conclusive, and the judgment became res judicata. In our opinion, testator intended that all of the trusts created under item 5 were to be set up at one and the same time. Since the trusts for the two granddaughters had to be set up at the time of the audit of the executors’ account, it follows that the trusts for the grandsons bearing the family name “Earle” also 'had to be created at that time, or not at all. This is in accord with the established rule of law with respect to — 447 — gifts to a class and also in harmony with the entire testamentary plan. It is significant to note that testator in the ninth paragraph of his will stated: “Upon the death of any of my children above named, either before my death or thereafter. . . .” (Italics supplied.) The use of this clause clearly demonstrates that testator recognized the import of such language. If he had said in item 5 of his will “for the benefit of each and every male child of my sons who shall by birth either before my death or thereafter inherit and bear the name of Earle”, there would have been no doubt that he intended to include afterborn grandsons. However, his failure to include this clause in item 5 and his inclusion thereof in item 9 indicates that he did not intend that interpretation or effect to be given to subparagraph 3, item 5. The argument that testator had pride in his family name and desired especially to favor descendants who bore that name, to the exclusion of any other class of beneficiary, does not bear the light of analysis. At the time of the execution of the will testator had 14 grandchildren: Eight granddaughters, and six grandsons (excluding Ralph Earle, 2nd, who was en ventre sa mere). Of these 14 grandchildren, testator selected two granddaughters, neither of whom bore his name, for special consideration; one to the extent of $500,000 and the other to the extent of $300,000. The gifts to the grandsons “who shall by birth inherit and bear the name of Earle” were only $100,000 to each. In preferring these grandchildren it seems more likely that testator was influenced by the apparent needs of the children, rather than pride in his family name. In conclusion, we wish to emphasize what the learned auditing judge had made clear in his adjudication. Our conclusion does not disinherit Anthony Wayne — 448 — Earle or his issue. We merely hold that he is not entitled to the preference which is being sought in his behalf. The interest which he and his issue have in the residuary estate is not affected by our decision. The exceptions are therefore dismissed and the adjudication confirmed absolutely.