Argued February 10, 1925.
This is the second attempt to make a new disposition of the estate of William Buechley, deceased, valued at more than one hundred thousand dollars. His holograph will was first assailed as a forgery, then as being procured under undue influence. Having failed in these efforts (278 Pa. 227), a second attack is here made on the plea that he died intestate as to the larger part of his property. This claim was denied by the court below, and the present appeal followed.
The determining part of Buechley's will reads, "I William Buechley . . . . . ., do make this my last will and testament, hereby revoking any — and all wills heretofore made by me. . . . . . Item I give and bequeathe all the Remainder of my Estate to my — Son William Buechley Jr. whom I make constitute and appoint my Executor of this my last will and testament. Item I will all my Property real Estate to my Son William Buechley Jr."
It is the contention of testator's other children, appellants here, that the last clause clearly shows testator's intention to limit William's bequest to the real estate, which construction requires the personalty to pass without testamentary disposition. They argue that where a testator expressly declares his intention to give an entire class of objects to a legatee, and subsequently declares that he intends to give part of this class to the legatee, the latter expression must be given controlling effect by way of substitution for the former as indicating the changed intention in the testator's mind after he had written the preceding sentence, and the last expression must prevail. To sustain this conclusion not only must the will clearly indicate such construction, but it must do so in the face of certain legal principles promulgated to aid in ascertaining testator's intention and to effectuate it when discovered. These principles clarify what might otherwise be considered as a doubtful interpretation of a testator's will. Testator had an unquestioned right to distribute his entire property to and among beneficiaries of his own choosing, even if those of the same blood think they may be wronged thereby.
The will uses language indicative of an intention to make a complete disposition of all the property. To effect this intention a construction should be adopted that avoids intestacy: Biles v. Biles, 281 Pa. 565, 568. Where there is a gift of an entire estate by clear and explicit language, the presumption is that the gift is absolute, and subsequent clauses to reduce it must do so by language which is equally clear and explicit, having the undoubted effect of causing such diminution: Smith v. Bloomington, 282 Pa. 248. Where the two clauses cannot stand because of manifest inconsistencies, the latter clause must prevail.
With these general principles in mind, we must decide whether testator intended to give William only the
real estate? In interpreting the will we shall confine ourselves to the meaning derived from the words used, rather than what he meant as derived through the circumstances attending the execution, though the latter may, if necessary, be considered: Crick's Est., 35 Pa. Super. 39; Moore's Est., 241 Pa. 253. The court below depended largely on the latter to sustain its position. The will is written by testator's own hand, and, like many laymen, he did not comprehend the exact and inclusive meaning of the words employed. He gave all the remainder of his estate to his son. These words indicate an intention to give the whole estate, — all that he owned. They would mean so to a lawyer, and to almost everyone. It is unnecessary to cite authorities defining their extent, meaning and effect. It is sufficient to say that their use passes absolutely the entire property of the testator, not otherwise specifically disposed of. If testator intended to delimit this comprehensive gift, he would have employed language which conveys that idea. Such words as "I will all my property real estate to my son" can scarcely be said to be such clear and explicit language as evidences an intention to cut down the prior estate. He had given everything. He again gave a portion of it the second time to the same person. Had the devise been to one of the other children the situation would be different. Why did he add this sentence? It may be he did not know, when using the words "all my estate," they included real estate, and, to make it certain in his own mind, he specifically mentioned the latter. There is nothing contradictory in the two phrases. It would require a strong stretch of the imagination to hold this language sufficient to cut down an absolute gift of all the remainder of his estate. It might be considered as one of those rambling restatements or reutterances which commonly occur with men such as testator, who are unaccustomed to dealing in legal phraseology. If we should support appellants' view we would not only cut down an absolute entire gift,
but would also create an intestacy and declare as of no avail what testator tried to do, — distribute all his property. It would be a fanciful and forced construction to hold as appellants contend. Indeed, as in Baughman's Est., 281 Pa. 23,28, the latter clause may be said to be a tautological statement of what had preceded it.
The decree of the court below is therefore affirmed, at the cost of appellants.