254 Pa. 159 | Pa. | 1916
Opinion by
Eliza Thaw Edwards died' on May 13, 1912, testate, leaving to survive her four daughters, Burd B. E. Dickson, wife of Charles E. Dickson; Katherine M. Edwards, Eliza T. Edwards and Mary L. Edwards, and five grandchildren, the children of Mrs. Dickson. She appointed as her executors Katherine M. Edwards, Charles E. Dickson, and The Safe Deposit & Trust Company of Pittsburgh, to whom letters testamentary were granted on May 20, 1912. Mrs. Edwards’s will is dated August 8, 1906, and she added a codicil, dated August 3, 1908, and a second codicil, dated July 27,1911. The will and codicils are holographic, and the latter are in the form of letters addressed by the testatrix to her daughters. The will disposes of the whole estate, directs that the testatrix’s four daughters shall participate equally in the distribution of the estate, and declares: “I leave no large debts and any indebtedness to me is hereby can-celled.” The first codicil suggests the death of certain legatees, makes alterations and substitutions in certain legacies, cancels legacies given to servants who had left her service, and adds: “To my son-in-law Charles E. Dickson who has been a great comfort to me I leave $5,000.” In beginning the second codicil, the testatrix says: “I have read over and resealed this will each summer before leaving home, and noAV Avish to make the following changes.” She then directs that a legacy given a relative, since deceased, shall revert to her estate, and that legacies to two friends shall be increased. She expresses a wish that her trust estate shall be increased by certain accumulations, “each daughter to have equal share of income from same” for life, and that some of her silver be given to certain relatives.
The executors filed a first and final account to which numerous exceptions were taken by Mary L. Edwards and Eliza T. Edwards, one of Avhick is that the accountants erred in not charging themselves with the amount of the note of Charles E. Dickson for $32,000. On December 27, 1910, Mrs. EdAvards loaned the money to Mr, Dick
In sustaining the exception to the account and surcharging the executors with Mr. Dickson’s note, the learned auditing judge, whose adjudication was confirmed by the court in banc, said: “The language used by the testatrix that all debts are forgiven cannot be construed to exempt the note of Mr. Dickson. The direction is inserted between the appointment of executors and the beginning of sundry money bequests; Mr. Dickson was not one of these original legatees. In 1908, by her first codicil, she gave him a legacy of five thousand dollars; as an executor he is receiving a large part of adequate compensation for his services up to this time.. The part of testatrix’s will containing the clause, Any indebtedness to me is hereby cancelled,’ was written in August, 1906; at that time this debt was not in existence. When she made the loan on Mr. Dickson’s note of $32,000 in 1910, taking a mortgage and other collateral as security therefor, she cannot have had in mind, or intended, that the debt she then created, was forgiven by her language four years before; if so, she would not have taken the obligation for the loan. When she made her
In addition to other indebtedness, the testatrix had a large number of coupon bonds issued by corporations. Did she include these in the cancellation provision of her will? In terms, she did: “any indebtedness to me is hereby cancelled.” The language of this provision would include all debts due the testatrix, regardless of the form of the instrument which secured their payment. If default is made by the debtor, payment of the bonds and coupons must be enforced, unless otherwise specifically provided, in the same forum and by the same kind of an action as her other obligations for the payment of money.. All parties concede that it was not Mrs. Edwards’ intention to cancel all the securities, evidencing an indebtedness, held by her. The opposite theory would be irrational and manifestly absurd. The language of the provision is, however, sufficiently- comprehensive to justify this construction, and, if the .appellants’ contention is to prevail, the clause must be so interpreted; the consequence of which would be to wipe
The intention of the testatrix must prevail, and "the learned auditing judge has pointed out reasons why, in the second codicil, “she cannot have had in mind, or intended that the debt she then (in 1910) created was forgiven by her language four years before.” She speaks in the present tense, and declares that “any indebtedness to me is hereby cancelled.” There is nothing in either codicil, construed in the light of all the circumstances, which justifies the conclusion that the provision should speak as of a later date so as to cancel the Dickson indebtedness contracted subsequently to the date of the will. The testatrix in the first codicil, as quoted above, discloses the opposite intention by cancelling in terms bequests made to servants who had since left her service. The second codicil does not refer to, or make provision for, the cancellation of any indebtedness due the testatrix. In the first codicil, she gave to Mr. Dickson $5,000 in appreciation of his “great comfort” to her. Two years later, when she made the loan to him, she manifestly felt she had sufficiently rewarded him for his kindness to her, and required him not only to give his note but also to secure it by ample collateral. This was the creation of a debt, with security for its repayment, four years after the testatrix had declared that “any indebtedness to me is hereby cancelled.” Seven months after the loan was made and the securities were taken, the second codicil was executed. It does not, in terms, cancel or refer to the debt or note, nor does it otherwise indicate an intention to convert the loan into a gift, unless such is the legal effect of a republication of the will as of the date of the codicil. But this is a question of intention, and, as already stated, the several provisions of the will and codicils and the circumstances do not show that the testatrix intended to cancel the debt. She still retained the note and collateral which, under
The appellants contend that the second codicil operates as a republication of the will and makes it speak as of the time of the execution of the codicil, and that, therefore, the Dickson indebtedness was cancelled by the provisions of the will. It is urged that this is the effect of the codicil, not only in contemplation of law but expressly by the first clause of the codicil. It is claimed that she had manifested her appreciation of Mr. Dickson and his services to her by the bequest of her husband’s cavalry pistol and a legacy of $5,000.00, and, as a further mark of esteem, she intended to cancel the Dickson note and collateral, and that,. therefore, the cancellation provision of the will should speak as of the date of the codicil. It is undoubtedly the general rule that a duly executed codicil operates as a republication of the will, so far as not altered or revoked by the codicil, and makes it speak as of the date of the codicil. But, as said in 40 Cyc. 1220, this rule is not absolute; it does not apply in every case and for all purposes; nor does it, of necessity, alter the construction of the will, its original date still being a factor for purposes of construction and interpretation. Moreover, the rule is subject to the limitation that the intention of the testator must not be defeated thereby. In 1 Jarman on Wills (6th Eng. Ed. 1910) 203, it is said: “Although it is true that a codicil confirming a will makes the will for many purposes to bear the date of the codicil, yet this rule is subject to the limitation that the intention of the testator be not defeated thereby. If,
This doctrine is recognized and applied in our own decisions. In Alsop’s App., 9 Pa. 374, 381, Mr. Justice Bell, after stating the rule that a codicil operates as a republication of the will so as to make it speak as of the date of the codicil, says: “But like every other general and artificial rule applied in the construction of wills, it gives way before an ascertained adverse intent. Where such actual intent appears, the will and codicil will be treated as distinct instruments, in order to give it effect, though in legal contemplation they are regarded as one testament.” The learned justice then discusses the English cases, and proceeds (p. 383) : “These adjudications, and others of a like character, show that questions like ours are questions of intention, as indi-, cated by the language used. We are thus narrowed down to the inquiry, whether from the face of the will alone, or taken in connection with the several codicils, an intent can be gathered to confine the distribution of the residue among the legatees named in the will proper.”
The appellants rely on Coale, Exec. of Brinton, v. Smith, 4 Pa. 376, to sustain their position that a codicil is a republication of the will so as to make it speak from the time of the execution of the codicil. There is no question, as already suggested, that this is the general rule, but appellants fail to observe its limitations, which, as pointed out above, are as well established by the decisions as the rule itself. It is true that some parts of the opinion in that case may apparently justify the contention of the appellants that there is no limitation or exception to the rule that the will speaks as of the date of the codicil, regardless of the intention disclosed by the will,' the codicil, and the circumstances of the particular case. It is clear, however, that the learned justice
From these and other authorities which might be cited, it is clearly deducible that while the general rule is that the execution of a codicil republishes the will as of the date of the codicil, it is subject to the limitation that the intention of the testator shall not thereby be defeated. As already pointed out, the provision of the will in question speaks in the present tense, and was doubtless intended to operate on debts existing at the date of the will which no doubt embraced only small sums or debts of minor importance, regardless of the fact whether they were due from relatives or friends. We are satisfied that it was not the intention of the testator, in the execution of the second codicil, to republish the provision of the will in question, and thereby cancel or annul the large indebtedness so recently contracted by Mr. Dickson, whose obligation the decedent held at the date of the codicil and also at the time of her death.
The decree is affirmed.