Grier Estate

Klein, P. J., — Jay R. Grier died June 13, 1958, in his eighty-eighth year. He had been a lawyer since 1891 and specialized in probate matters for many years. He had never married and when he died his closest next of kin were three .first cousins. The balance of his personal estate, after payment of debts, administration expenses and $66,500 on account of Pennsylvania transfer inheritance tax was $574,-580.25. Decedent owned one piece of real estate, 5134 Newhall Street, Philadelphia, valued at $6,000. The will was typed by testator personally on two sheets of paper, in very close, single space. Testator instructed his executors, after payment of his debts and funeral expenses: “Item One . . . “To make sale of any and all personal property, such as household goods, for the best price or prices obtainable therefor, and after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations, as hereinafter bequeathed, that is to say: (Italics supplied) “To Emma G. Oldknow, the sum of Ten thousand dollars, ($10,000) free of all inheritance taxes of every kind or description, absolutely. “To Laura Sand, the sum of One hundred dollars ($100) free of all taxes; . . .” — 753 — These directions are followed by 25 gifts, two for $2,000 each to two of his three surviving first cousins and the remaining 23 to charitable organizations. Each of these gifts is followed by the words “free of all taxes and absolutely.” Testator then did a most unusual thing. He left a blank space of about two and three-quarters inches in his tightly typed will between the end of the list of legacies in item 1 and the beginning of item 2. Sometime after the date upon which he executed his will, he added the twenty-eighth legacy in this blank space, a second gift to Miss Sand, to whom he had previously given $100. This addition is in a lighter type and indented. It reads: “To Miss Laura Sand, of 5321 Wayne Svenue (sic), Germantown, Philadelphia, the sum of Two hundred and fifty dollars ($250), free of taxes and absolutely in appreciation of her many kind acts from time to time.” The blank space still remained at about two and a quarter inches when the will was probated. Item 2 of the will provides, as follows: “Item 2 — 1 authorize and direct my executors hereinafter named, Or their successors, to make sale of the rea-Westate known as No. 5134 Newhall Street, Germantown, Philadelphia 44 for the best price obtainable therefor, and to make, execute and deliver their deed of conveyance for the same to the purchaser thereof in fee simple, clear of all encumbrance and to distribute the proceeds to and among the legatees as hereinefore (sic) named.” The total of the pecuniary legacies listed in item one is $125,450, of which $14,350 is bequeathed to the named individuals and $111,100 to the charities. This disposed of only about 20 percent of the personal estate. The next of kin, the three surviving first cousins, contend that there is an intestacy as to the residue. — 754 — The charities and the other individual legatees maintain that Mr. Grier has disposed of his entire estate. The auditing judge agreed with the latter position and rules that testator disposed of his entire residuary-estate among his legatees in proportion to their legacies. The next of kin have filed exceptions, which are now before us for consideration. We regret that we cannot agree with the conclusions of the learned auditing judge. In our opinion, testator has failed completely to dispose of the balance of his personal estate, after payment of the 28 designated pecuniary legacies, and that an intestacy results with respect to this balance. As compelling as the commandments of our sacred Decalogue, is the basic rule in probate courts that the pole star in interpreting a will is testator’s intention: Sarver’s Estate, 324 Pa. 349 (1936); Britt Estate, 369 Pa. 450 (1952) ; Weaver Estate, 390 Pa. 128 (1957). Each will is unique and for this reason precedents are of little value: Brennan’s Estate, 324 Pa. 410 (1936); Jackson’s Estate, 337 Pa. 561 (1940). The slightest variation in language and attending circumstances may lead to wholly different conclusions with regard to testator’s intent, and therefore to wholly different results: Byrne’s Estate, 320 Pa. 513, 523 (1935). In our opinion, the circumstances of the present case are most unusual. Ordinarily, a will is started and brought to an end in a continuous and unbroken recital of instructions and directions pertaining to the disposition of testator’s property following his death. This is not the case with respect to the will before us. Testator deliberately left a space of more than two inches at the end of item one, in the very heart of the dispositive portion of the instrument. The auditing — 755 — judge has failed completely to give consideration to this unique feature of this will. There is no magic in the use of the word “residue”. An effective residuary gift can be made without using the word “residue” and its use does not, of itself, constitute a residuary clause. Where testator manifests an intent to dispose of everything not otherwise disposed of by the will, the dispositive clause is regarded as residuary; no technical mode of expression is necessary: Armstrong Estate, 347 Pa. 23 (1943). See also Haak’s Estate, 342 Pa. 93 (1941) ; Slater Estate, 377 Pa. 285 (1954) ; Carson’s Estate, 130 Pa. Superior Ct. 133 (1938). In the present case, although testator used the word “residue”, it seems evident that he failed to dispose of his entire estate. He apparently left the blank space of over two inches at the end of the paragraph in order that he might add, at a later time, the name of one or more beneficiaries who would receive the balance of the personal estate after the payments of debts, taxes and the other pecuniary legacies. This is the only logical explanation of this void. This aged man either wholly forgot to complete his will or died before he made up his mind with finality. Except where the provisions of the will direct otherwise, or the intention of testator to the contrary can be plainly inferred therefrom, collateral or succession taxes are chargable against, and payable out of, the respective legacies bequeathed by the will: Brown’s Estate, 208 Pa. 161, 164 (1904). The residue of an estate bears the burden of all taxes on legacies which testator has exempted from payment of tax. Each of the 28 pecuniary legacies in item one is made clearly and unmistakably “free of tax”. It is wholly inconsistent and incompatible with an intention to dispose of the residue of the estate to specify that the residuary legacies be free of all taxes. — 756 — Testator, who was an experienced lawyer and learned in probate law, must have been aware of this. The only reasonable conclusion from this circumstance is that he intended to give each legatee the designated gift, undiminished by the imposition of tax, and no more. If he meant to give the residue to these pecuniary legatees, the use of the language making these legacies free from tax was meaningless and surplus-age. We cannot attribute such an intent to this lawyer-testator. The effect of the adjudication is to hold that “free of tax” really means “subject to tax” and to make the charitable legacies subject to a pro rata share of the Federal estate tax upon the legacies to the individuals, from which they would normally be exempt. This is a tortured and illogical conclusion which we must reject. Furthermore, the adjudication attempts to change the dollar mark attached to each pecuniary legacy into a fractional share of the general residue. There is nothing in the will authorizing such a change. We cannot accept the contention that testator’s use of the words “to distribute the residue to and among the following named persons and/or corporations as hereinafter bequeathed” supports the conclusion of the adjudication that testator intended a proportional distribution of the general residue. On the contrary, we believe the language to mean that each of the named legatees is to receive the designated amount of the legacy but no more than this. Furthermore, we cannot accept the legatees’ contention that the provisions of item 2 are sufficient to indicate that testator intended to dispose of his entire personal estate in item 1. All that this paragraph directs is that the proceeds of the sale of a single piece of real estate be divided among the named legatees. It does not state in what proportions the distribution is to be made. Not one word is contained in this item — 757 — which directly or indirectly throws any light on the manner in which the balance of the personal estate remaining after the payment of the pecuniary legacies is to be distributed. Neither in item 1, nor in item 2, does testator make any disposition of the balance in question. When zero is added to zero, the total is still zero. Item 1 and item 2, whether read singly or together, fail to prevent an intestacy of the balance of the personal estate. Under the circumstances of the present case, we need not concern ourselves with the off-setting presumptions that a testator intends to dispose of his whole estate and the equally important presumption that an heir is not to be disinherited except by plain words or necessary implication. See Bigony Estate, 397 Pa. 102 (1959). It seems evident that testator did not intend to benefit his next of kin beyond the two legacies of $2,000 each given to his cousins, Martha G. Michael and Georgia B. Michael. It is just as likely that he did not intend to have any part of his estate pass under the intestate laws. What he intended, in our opinion, was to fill in the blank space at the end of item 1 by inserting the name of an individual or a charity to receive the balance of his personal estate not bequeathed in the enumerated list. That at least one, and possibly three, insertions were made after the will was executed, is evident from an examination of this will. However, it is clear that testator failed to add the final gift which would have effected a complete disposition of his personal estate and prevented the occurrence of an intestacy. The manner in which testator intended to dispose of the balance is a matter for speculation and conjecture in which we are not permitted to indulge. The Supreme Court’s statement in Schmidth Estate, 183 Pa. 641 (1898), at page 647, is most pertinent: — 758 — “The omission of a residuary clause in wills is not by any means an uncommon occurrence. But because of such omission it is neither necessary nor proper to give the residue to some specific legatee upon a forced construction of words which do not indicate such a purpose in the mind of the testator.” We are convinced that even if Mr. Grier had not made each of the legacies for specific amounts and free of all taxes and if, further, he had not left the blank space in his will, the legatees would still not'be entitled to the balance they are claiming. Several cases have been before our courts in recent years, in each of which the language used was much more indicative of an intention to dispose of the entire residue, yet in each case the court reached a contrary result. In Bigony Estate, supra, testatrix directed: “Second. All the rest, residue and remainder of my estate, consisting of securities, stocks, bonds and mortgages, I give and bequeath unto my said Sister ...” Three years after her death, certain assets were found, consisting of the balance of a trust fund set up under her husband’s will and the proceeds from the sale of real estate set apart as her intestate allowance in her husband’s estate. The question was raised as to whether the language of the will constituted a general residuary clause, effectively disposing of these after-discovered assets, or whether she died intestate with respect thereto. The Supreme Court held that this language showed an intent to limit the property passing thereunder to the assets known to testatrix, i.e., securities, stocks, bonds and mortgages. ■ We believe the decision in Heintzleman Estate, 66 D. & C. 548, which was before our court in 1949, to be most persuasive. In that case, testator provided: • “6. I give, devise and bequeath.the rest, residue and remainder of my estate real personal and mixed of every character and nature whatsoever as follows....” — 759 — Testator then listed six pecuniary legacies which did not exhaust the residue of his estate. As in the present case, the legatees claimed the balance in proportion to their respective legacies. What Judge Hunter said at page 544, in denying their claims, can be repeated here with profit: “There is nothing in the language of the will which indicates that the amounts of these legacies are to be so increased, and the court cannot insert a substantive disposition of property which testator himself failed to make. The rights conferred by the intestate laws are only taken away by a will which effectually disposes of the entire estate of decedent; and, while a 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 testator has said, and does not extend to the consideration of what he might have said but did not: De Silver’s Estate, 142 Pa. 74 ...” Wilt Estate, 9 Fiduc. Rep. 334 (1959), is also very much in point. In that case, testatrix provided: “Item 2. When everything is disposed of, my half estate shall be divided into three shares, as follows: One share for Malta Home of Granville, Pa.; One share to Odd Fellows Home of Middletown, Pa.; and the third share to Christ Lutheran Church of Allentown, Pa.” In Item 3, testatrix provided: “Of the other half of my estate, I give and bequeath unto Mrs. Alben Eckhard, the sum of $1,500.00 dollars.” In Items 4, 5, 6 and 7 testatrix gave pecuniary gifts to legatees in stated amounts, the total of which was $7,716.75 less than half of the estate. Judge Gearhart held that item 2 operated as a residuary clause as to one-half of the estate but that there was a partial — 760 — intestacy as to the balance of the other half. He said, at page 336: May 20, 1960. “It is to be observed that the testatrix in Item 2 made an outright gift of the half of her estate. In Item 3 she did not make a gift outright of the half of the estate. What the testatrix did was to refer to the half of her estate and out of it she carved pecuniary bequests in stated amounts to named individuals. No where did she make any disposition or refer to the balance remaining after the payment of the pecuniary legacies. We have here a situation where a portion of the estate is ‘undisposed of.’ But it is not a devise or bequest which is undisposed of. Testatrix probably, by inadvertence, failed to add a residuary clause, disposing of the balance, or she may have thought that the pecuniary bequests would consume the half of the estate. Whatever the reason for her failure to insert a residuary clause disposing of this balance, must become a matter of conjecture on our part. This we are not permitted to indulge in.” To the same effect see Corr’s Estate, 202 Pa. 391 (1902) ; and Sowden Trust, 6 Fiduc. Rep. 619 (1956), in which the present auditing judge reached a different result. We therefore conclude that Jay R. Grier, testator, failed to dispose of that portion of his personal estate in excess of the 28 pecuniary legacies set forth in item 1 of his will and that an intestacy occurred with respect thereto. The exceptions are therefore sustained and the adjudication, as modified in the opinion, confirmed absolutely.