243 Pa. 34 | Pa. | 1914
Opinion by
William Anderson died at his home in Latrobe, Pennsylvania, on March 30, 1902, leaving a last will and testament, dated November 16, 1894, which was duly proved June 3,1902. By his will, after bequeathing two small pecuniary legacies, he directed that his property be converted into cash, that the money given or loaned to any child or children, including grandchildren, should be added to the money realized from the sale of the property, and that the sum total be divided into six equal shares which he gave to his sons, John B., William C., and George B-, the children of a deceased son, Hamilton B., and his daughters, Anna and Hattie. He directed that the shares of John, William, George, Anna and Hattie “shall be their own absolutely”; and that the
By Codicil No. 1, dated September 15, 1896, being nineteen days before his son George’s death, he directed that “George’s share as above created shall be divided as follows: one-fourth part to Anna, one-fourth to Hattie, and one-half to William. This is George’s wish.” George died October 4, 1896, intestate, unmarried and without issue. Anna died intestate, unmarried and without issue on March 26, 1902, four days prior to the death of her father.
On November 16, 1900, the testator added a fourth codicil to his will, the third clause of which provides as follows: “As respects George’s share, as stated in Codicil No. 1, it shall be divided between Anna, Hattie and William. The share of any deceased one shall go to the others or other. After the death of all three, or earlier if they prefer, or if the last survivor prefers, the fund shall be used to carry into effect the agreement existing between the three to endow, as soon as practicable or convenient, a room in an approved hospital as a means of preserving the memory of their lamented brother George.” This codicil was not attested by subscribing witnesses. There were five codicils to the will, only the two above mentioned having any bearing on the questions at issue in this case. . John B. Anderson died December 21, 1909, and William C. Anderson, November 25,1910.
William Anderson appointed William C. Anderson his executor to whom letters were duly issued. The executor died without having filed an account, which was filed for him by his executrix, Lizzie Pershing Anderson, his wife, on August 7, 1911. The account, after certain voluntary surcharges had been made, showed a balance for distribution of $90,995.42.
The only part of William Anderson’s estate in controversy here is what is known as George’s share. Lizzie Pershing Anderson, the widow of William C. Anderson
The learned judge of the Orphans’ Court filed an ex? haustive opinion in which he dealt at length with the contentions of the several claimants to the fund for dis: tribution. He held that the testator by his will, had divided the residue of his estate into six equal shares, and that George’s share was one-sixth thereof; that by the first-codicil George’s share was given to Anna, Hattie and William; that by the fourth codicil the absolute estate or interest in the share given to Anna, Hattie and William in the first codicil was cut down and limited to a life estate; that at the death of the survivor of the three he gave the share to endow a room in an approved hospital which was for a charitable use; and that the charity failed because the fourth codicil had not been executed in the presence of attesting witnesses as required by the Act of April 26, 1855, P. L. 328. Lizzie Pershing Anderson, executrix of William O. Anderson, deceased, who was executor of William Anderson, deceased, took this appeal from the decree of distribution in so far as the decree related to George’s share of the estate.
It must be conceded that an absolute and unconditional estate or interest was given George in the one-sixth of the testator’s residuary estate. It is equally true that the same estate or interest was given by the. first codicil to Anna, Hattie and William, the sisters each taking one-fourth and the brother the one-half of George’s share. The controversy, as will be observed, arises over the construction of the fourth codicil which the appellant contends is of no validity and does not modify or affect the absolute estate or interest in George’s share bequeathed in the first codicil. The reasons assigned for this position are not convincing. The intent of the testator; disclosed by his will, is clear. He intended to and did give George one-sixth of the resid
The bequest to the hospital was sufficient as to the object of the charity, but whether it was or not is immaterial in view of the fact that the charity failed because the codicil was not attested by two credible witnesses, as required by the Act of April 26, 1855, P. L. 328, 1 Purd. 595. The act declares the bequest to charity void and provides that the fund shall go as therein directed. The whole codicil was not void, however, because it was not executed as required by the Act of 1855. The provision for the life estates was valid and vested them in the life tenants: Moore’s Est., 198 Pa. 611. The purpose of the testator was to provide for the three legatees during life and was therefore legal. The life estates were not created for an unlawful purpose, nor to carry out an illegal scheme. The provision for the charity was not illegal. The particular estates and the remainder were carved out of the same fund or property, and were distinct and independent of each other. The provision as to the particular estates is a valid testamentary disposition of the property, and the fourth codicil having been properly executed, the first codicil was revoked.
The charity being void by reason of the codicil not
We agree with the appellant’s contention that it is a general canon of construction that words of survivorship in a will refer to the death of the testator. But this should not be held to be a hard and fast rule that cannot be changed by the instrument itself. It must always be subject to the intention of the testator as disclosed by the language of his will. It is a cardinal rule that the actual intent of the testator must prevail when it can be ascertained, and it follows that words of survivorship will relate to the death of the life tenant instead of the death of the testator if such intent is clear from the will itself. In Woelpper’s App., 126 Pa. 562, Mr. Justice Mitchell discusses the subject at length, and after referring to the many cases on the subject says (p. 574) : “It may well be doubted whether one or more of them (the cases) has not in the desire already spoken of to reduce the uncertainties of the subject to a minimum, pushed the application of the set general rule up to or beyond the true bound; but the strongest and most emphatic of them has stopped short of deciding that the rule, declaring the presumed intent of the word, surviving, to apply to the time of the testator’s death, shall override the plain actual intent of the testator to refer it to another period.” In Mulliken v. Earnshaw, 209 Pa. 226, the same learned justice speaking for the court says (p. 229) : “The want of harmony in the cases dealing with the period to which the words ‘then living’ or similar phrases, in a will, should be applied, arises mainly from the artificial canon of construction that
There can be no reasonable doubt, as already suggested, as to the intention of the testator in the third paragraph of the fourth codicil to create a life estate or interest in George’s share for the three legatees. The, language permits of no other reasonable interpretation. It is clear that on the death of one of the three, his share is to go to the other two and the fund is to be held intact by them, and on the death of the second one his share is to go to the third or remaining one, and the fund is to be held by him. This is the plain and undoubted meaning of the testator’s language which is: “the share of any deceased one shall go to the others or other.” This is followed by the provision that “after the death of all three, the fund shall be used......to endow......a room in an approved hospital,” which clearly limits the estate held by each of the three legatees to a life interest in George’s share. The remainder was disposed of in a bequest to charity which failed by reason of the failure to have the codicil properly attested. It is manifest from his language that the testator intended the share should be held for the use of the life tenants and the, survivor of them, and should not go over until the death of the latter whenever that might occur. To carry out his purpose in disposing of the fund for distribution, it is absolutely necessary that the words of survivorship, as here used, must be construed to relate to the death of the surviving life tenant and not to the death of the testator. We therefore think, in the language of the cases, that it is apparent from the circumstances and context that the words of survivorship relate to the death of the survivor of the three legatees. ., ;
The decree is affirmed.