56 A.2d 201 | Pa. | 1947
William P. M. Braun, a resident of Philadelphia, died testate on January 15, 1946. His last will bore date of March 16, 1926, and a codicil thereto was dated February 2, 1942. Both the will and codicil were duly probated and letters testamentary were granted by the Register for Philadelphia County to the testator's widow, Otylia S. Braun, and to one of his two sons. The other son, who was also named in the will as an executor, formally renounced. The two sons are the natural children of the testator and his wife.
By the will, the testator bequeathed specific legacies to his wife, to his sons and to certain named charities; and, by paragraph "Seventh", he bequeathed the sum of $50,000 to his executors in trust for his adopted daughter, Mildred, who was to receive the income quarterly after she reached the age of twenty-one and the fund outright when she became thirty-five years old. By paragraph "Eighth" of the will, the testator gave his residuary estate to his wife.
The daughter, Mildred Braun (now Dietrich), was born on August 6, 1910, and was adopted by the testator, but not by hiswife, in 1915 by a decree of the Court of Common Pleas of Philadelphia County. At the date of the codicil, she was thirty-one years old, was married and had two children. She is now over thirty-five years *273 old and, therefore entitled under the will to the trust fund, absolutely, unless her right thereto was taken away by a provision in the codicil to which reference will now be made.
The codicil, which, as the learned auditing judge found, "appears to have been drawn informally by testator himself", made some change in the bequests to the charities named in the will and reduced the sons' legacies by bequeathing to their mother certain stocks given them by the will. But, the presently important part of the codicil is the first paragraph thereof which contains the following provision: "First: I hereby revoke the Trust Fund in favor of my Daughter Mildred, and substitute a lump sum of __________ dollars in cash." Mrs. Braun, the residuary legatee, contends that the provision in the codicil, just quoted, constitutes an unqualified revocation of the legacy in trust for Mildred, as bequeathed by the will, and that the portion of the provision purporting to be a substitute gift is void for uncertainty in that it fails to specify any number of dollars.
The learned auditing judge held, however, that the legacy to Mildred was not revoked by the codicil and, accordingly, awarded her (then past thirty-five) the trust fund outright. The decision was based on the grounds (1) that the doctrine of dependent relative revocation is applicable and (2) that the revocation was conditioned upon the substitutional gift's being made effective which it never was, wherefor the revocation was legally ineffectual. The court en banc dismissed exceptions of the residuary legatee to the adjudication which was thereupon confirmed absolutely. From the consequent final decree entered, Mrs. Braun brings this appeal.
The doctrine of dependent relative revocation is a rule of testamentary construction whose use, as in the case of all such rules, is limited to aiding in the ascertainment of a testator's true intent. While the learned court below correctly observed that the doctrine "is not *274
forbidden by the authorities in Pennsylvania", in McClure'sEstate,
Melville's Estate,
Here we have a case where the dispositive part of the revoking instrument fails because of a defect intrinsic to the instrument, in that, the bequest which was to be the substitute for what the codicil purported to revoke was permitted to remain incomplete. Accordingly, the doctrine of dependent relative revocation at once became applicable. The circumstances of the case aptly fit the requirements of the rule, a concise statement whereof is to be found in Jarman on Wills (7th Edition, 1930), Vol. 1, at p. 135, as follows: "Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction; and therefore, if the will intended to be substituted is inoperative from defect of attestation, or any other cause, the revocation fails also, and the original will remains in force . . .". See also Gardner on Wills, Second Edition, at pp. 232-233, where Jarman is cited and quoted, substantially as above; and Lutz's Estate, 27 W.N.C. 403, 406, where the late Judge PENROSE, of the Orphans' Court of Philadelphia County, quoted with approval an English expression of the doctrine as defined by Lord Alvanley in Ex parte Ilchester, 7 Ves. 372.
The result to which the doctrine of dependent relative revocation thus directly leads in this case is precisely what the testator's will and codicil produce when interpreted together as the law requires: see Moore Estate,
By his will, the testator bequeathed to his daughter, Mildred, $50,000 in trust to be received by her outright when she reached the age of thirty-five years. Nowhere thereafter, and certainly not in the codicil, did the testator ever indicate that his daughter was to cease being an object of his testamentary bounty. As the learned auditing judge pointed out (citing Sloan's Appeal,
Here, the testator's plain desire was to lift his benefaction to his daughter out from under the trust which the will had imposed. She had been only fifteen years old when the will was written, but, even then, the testator intended her to receive the principal of the trust outright when she reached the age of thirty-five. When he came to make the codicil, his daughter was then thirty-one years old, married and the mother of two children. His intent with respect to her legacy is evident. It was the "Trust Fund" which he desired to revoke *277 by the codicil and to substitute therefor an outright gift of a certain number of dollars. The provision in the codicil was not a revocation but a substitution; and, because the substitutional gift was never completely defined, there existed no testamentary purpose for the so-called revocation that can be derived from anything the testator indicates by either the will or codicil.
The appellant contends that the revocation specified in the codicil was independent and complete and that the provision for a substitute bequest is void for want of certainty. In that connection, the appellant argues that there are evidences to be drawn from the codicil that the testator intended to cut down the amount of his bequest to his daughter. The point is not helpful to the appellant. The contention impliedly concedes that the testator meant to give his daughter something by the codicil. In passing, it may be said that it is equally inferable that the testator meant to increase the amount of his bequest to his daughter. By the codicil, he increased the net amount of his bequests to charity and also increased his bequest to his wife. True enough, he made the latter augmentation by taking away from his sons a bequest of certain stock bequeathed to them by the will. However, the fact that he thus reduced his bequest to his sons furnishes no inference that he meant to reduce the bequest to his daughter. Had he not good reason to believe that the mother would take care of the sons who were her own natural children? And, no one but the testator was under any parental duty to the daughter. But, whether the testator meant, by his codicil, to increase or decrease his bequest to his daughter is of no moment. As the appellant's argument implies, the testator meant to give his daughter something by his codicil; yet, he neglected to complete the gift. No amount of conjecture can obscure that fact. And, not having given his daughter anything by the codicil, the so-called revocation, upon which the incomplete substitute gift was dependent, became wholly inoperative. *278
The interpretation thus placed upon the will and codicil in this case comports with well-established canons of construction. The general scheme of a will is not to be overborne by modifying directions that are incomplete, ambiguous or equivocal. " 'Such directions are to be so construed as to support the testator's . . . main intention' ":Baugh's Estate,
The decree is affirmed at the appellant's costs.