41 A.2d 578 | Pa. | 1945
This appeal involves the construction of a will. The question is whether the language expresses a clear intent to exclude the widow as a statutory heir.
Testator, who died in 1905, possessed solely of personal property, was survived by his widow, his father and mother, two brothers and a sister, but no issue. He erected a trust for his residuary estate. The trustees were directed to pay the income to his widow for life, and at her decease, the trust was to terminate and be distributed as follows: "Any portion of my estate up to and not exceeding the one-half of the principal in trust as aforesaid, to any person or persons, natural or artificial, to whom my said beloved wife may have given or devised by her last will and testament duly probated. All the remaining half of my said estate, and all or any portion of the other half not so disposed of by will by my said beloved wife, to be divided among the heirs of myself, according to the intestate laws of the Commonwealth of Pennsylvania. My purpose being that my wife, although having but a life interest in the whole of the said trust, shall have the right by will after her death to give and devise at most one-half of said trust estate to any one that she may desire so to do."
The widow survived and took under the will. She died in 1943 and appointed, by her will, a full one-half of the trust estate. The executor of the widow claims, as part of the widow's estate, a one-half share of the remaining half portion of the trust under the Intestate Act of June 7, 1917, infra, on the theory that the widow was an "heir" of testator and had not been excluded, as such, by the will.
At common law and under the Pennsylvania Intestate Acts prior to the present Intestate Act of June 7, *315
1917, P. L. 429, 20 PS section 1, neither husband nor wife was an "heir" to the other as to real property: Dodge's Appeal,
The late Judge McDONOUGH, the learned auditing judge, ruled that the language of the will clearly indicated that testator had not employed the word "heir" in its strict technical legal sense. With this ruling we agree. Technical words, of definite meaning, ordinarily must be given their legal or definite effect: Carroll v. Burns,
As the testator died in 1905, prior to the effective date of the Act of June 29, 1923, P. L. 914,
The words of this will clearly indicate that the true intent of testator was to determine the heirs as of the time ofdistribution. This is not a case of the gift of a life estate with remainder to heirs, of which the life tenant was one. This testator worked out a scheme of distribution whereby his wife took a life estate in the whole trust. At her death one-half (or so much thereof as was appointed) passed according to her will. The rest went to testator's heirs. The heirs, under these circumstances, are to be determined as of the date of the death of the life tenant, whose estate is thereby excluded. See:Peirce v. Hubbard,
Any possible doubt is dispelled when it is considered that testator interpreted his own will. He wrote: "My purpose being that my wife, although having but a life interest in the wholeof the said trust . . ." (italics supplied). If we were to adopt appellant's construction, testator's widow would possess an intestate share in remainder in addition to her life estate, which would be in contradiction of testator's express words.
We note that the definitive decree of distribution makes an award to the father and mother of testator, as heirs and next of kin, "or to the legal representatives of *317 said legatees if either of them be deceased." While the assignments of error raise no question as to the propriety of such award, it is suggested that under the Intestate Act of 1917, supra, Section 8, if the parents are entitled, they take as tenants by entirety: Mechling's Appeal, 2 Grant 157;Frankenfield v. Gruver,
The decree is affirmed at appellant's cost.