177 Pa. 190 | Pa. | 1896
Opinion by
This case hinges on the proper construction of the residu
“Sixth. — All the rest, residue and remainder of both my real and personal estate, I give, devise and bequeath to my son Henry M. Boies, to my daughter Mari L. Brainard, wife of Thomas C. Brainard, to my daughter Ella B. Mills, wife of Luther Laflin Mills, and my son Matthew L. Boies, to be equally divided between them, on the following conditions: The shares going to my son Henry M. Boies and my daughters Mari and Ella. B. shall be held each of them in trust for their children, and the share going to my son Matthew L. Boies shall be held in trust by my son Henry M. Boies. My son Henry M. Boies shall pay to my son Matthew L. Boies the income from his share in quarterly payments each and every year during his natural life, and my son Henry M. Boies may in his discretion, in case my said son Matthew L. Boies shall reform and abstain from the use of all intoxicating drinks for two years, pay to him, my said son Matthew L., from three thousand to five thousand dollars to enable him to engage in business.”
At the date of his will — November 15, 1880 — the testator owned the mansion house, but in 1888 he sold it. On March 17, 1891, he made the following codicil to his will, declaring therein that it was sealed in the city of Chicago, Illinois:
“ I desire to have it known and understood by all interested in my last will and testament, and I so will, that it is my intention that my children surviving me, to whom I have left property in trust for their children, shall have the free use and benefit during their lives of the income of such trust, without the necessity of accounting to their children for such income, and that they shall have power to sell and reinvest the principal at their discretion, in such manner as shall, in their judgment, best preserve the principal sum for their heirs. Nothing herein, however, is to effect the original provisions of my will concerning my youngest son, Matthew.”
None of the remaining provisions of the will appears to afford any assistance in construing the residuary clause above quoted.
On April 22, 1891, the testator died at the home of his daughter Mrs. Mills in Chicago; and, on January 17,1894, his son Matthew died at Middletown, New York, unmarried and
The first specification of error involves the construction— claimed by appellant — of the residuary clause above quoted. The second and fourth specifications — depending on the construction thus claimed — present the question of distribution under the will of Matthew L. Boies. The third specification may be dismissed with the remark that there appears to be no error in the finding of fact therein recited.
There is no question as to the amount of the estate involved; nor, is. it doubted that, if the corpus of Matthew’s share did not pass to and vest in him under his father’s will, it remained undisposed of, and to that extent the testator died intestate. The validity of Matthew’s will is not denied, nor can it be doubted that, if he had any right or title, beyond an equitable life interest, ha or to the share given him by his father, the same passed to appellant by Matthew’s will. There is no dispute as to who are the legal heirs of Joseph M. Boies; so that, if he died intestate as to the corpus of Matthew’s one fourth, the distribution confirmed by the court is correct. The case, therefore, appears to resolve itself into the question whether Matthew took more than an equitable interest for fife only in the share given him by his father’s will; and that, of course, depends on the proper construction of the residuary clause above quoted.
In construing a will, regard must, of course, be had to the established rules of construction, one of which requires that all the parts thereof must be considered with refereiace to each other, or as it is sometimes expressed, the testator’s intention (the ascertainment of which is generally the purpose of 'constructioia) must be gathered from the four corners of the instrument. Another rule requires that (so far as. is consistent with the will as a whole) effect must be given to the words and, if possible, all the words of the testator used in their ordinary and natural sigiaification, etc. Other rules are that the presumption
If that part of the residuary clause preceding the words, “ on the following conditions,” stood alone, it would, under our Wills act of 1833, constitute an absolute devise and bequest in fee and in perpetuity of the one fourth of the testator’s real and personal estate to his son Matthew expressed in apt words. Standing, as we find it, however, in immediate connection with those words and the provisions which follow, it is qualified by them, but not, as we think, to the extent claimed by the appellee and sanctioned by the court below. It is conceded by them that, in using the four words above quoted, the testator did not mean “ conditions ” in the legal sense of that word. It is very evident to us that he employed the phrase only in the sense of “on the following terms,” or “subject to the following trusts.” As to “ the shares going to ” his son Henry and his daughters Mari and Ella B., he directs that they “ shall be held by each of them in trust for their children.” What he intended by this is explained in the codicil. As to “ the share going to ” his son Matthew, he provides that it “ shall be held in trust by ” his son Henry, and that Henry shall pay to Matthew “ the income from his share in quarterly payments each and every year during ” Matthew’s natural life. As to the corpus of Matthew’s share, the only other provision that is made by the testator is that “ in case Matthew shall reform and abstain from the use of all intoxicating drinks for two years,” the trustee for Matthew’s life of the corpus shall pay Matthew “from three thousand to five thousand dollars to enable him to engage in business.” In his codicil, he is careful to say: “Nothing herein ... is to affect the original provisions of my will concerning my youngest son Matthew.”
In the clause under consideration, the testator’s intention to-dispose of “ all the rest, residue and remainder of ” his estate both real and personal is clearly and emphatically expressed, and we find nothing in his will to indicate any intention to the contrary. It is a long and well settled rule “ that a will must, be so construed as to avoid partial intestacy unless the contrary is unavoidable: ” Boards of Missions’ Appeal, 91 Pa. 513; Scofield v. Olcott, 120 Ill. 374. In this case, however, the intent to die testate is so clear that it is unnecessary to invoke the aid of the rule.
It was not impossible, or even improbable that Matthew might marry during his father’s lifetime or afterwards, and die leaving children. In view of the provision made by the testator for his other grandchildren, it is scarcely possible to conceive that he intended to so dispose of Matthew’s share that his children, if he should leave any, would receive nothing. If he had intended to thus virtually disinherit them he doubtless would have done so in terms that could not be misunderstood,.
Decree reversed, with costs to be paid by the appellee, and record remitted to the court below with instructions to distribute the fund in controversy to the person or persons entitled •thereto under the will of Matthew L. Boies.