Estate of Mickley, 4 Pa. Super. 550

Estate of Mickley

4 Pa. Super. 550 | Pa. Super. Ct. | 1897

Opinion by

Beaver, J.,

The single question, the kernel of each assignment of error in this case, is the construction of a sentence in the will of Daniel Mickley which is as follows: “To the following named persons I give and bequeath the residue or balance of my estate in such proportion as shall make the shares of each equal, after deducting from each so much as has already been given them (which amount is recorded in my book kept by me for that purpose) as follows: to Mrs. Kate Bell, Mrs. Mary Bell, Mrs. Susan Good, Jacob Summers, son of Sarah Summers, deceased, heirs of Mrs. Elizabeth Stephey, deceased, an equal proportion of one share, and to Daniel W. Mickley, Simon Mickley.” The sole question is whether under the terms of tins bequest the heirs of Mrs. Elizabeth Stephey take the share bequeathed to them in equal proportions subject to or freed from the burden of advancements made to the said Elizabeth and charged against her by the testator. It is claimed by the appellant that the heirs, who in this case are the children of Mrs. Elizabeth Stephey, being personae designate, take their share, without deducting the advancements made by their grandfather to their mother in his lifetime.

The substance of this will was dictated by a plain layman to a scrivener who was not learned in the law. The instrument is singularly wanting in technical terms and expressions and, if construed by the person who wrote it or by any ordinary layman, there would probably be little difficulty in reaching a conclusion as to what the intention of the testator was, and it is only when the technical rules of strict construction are applied to the terms used that difficulties appear.

The first object in the construction of a will is to ascertain the intention of the testator. As was well said by Bailey, J., in Wickham v. Turner, 2 D. & R. 398 (16 E. C. L. 96): “We certainly are not empowered to make a will for a testator, but we are empowered, and it is our duty also to construe the will he has made so as to give effect to that which upon the whole may reasonably be taken to have been his intention and object. We are to act either upon express words or upon a manifest intention, and where the language is at all doubtful in one part we are to construe that part by reference to and comparison with former parts (or latter) as a key to explain the particular *554word which gives rise to the doubt entertained.” In reaching a conclusion as to the intention of the testator, as Lord Kenyon has-forcibly expressed it, “You are to look into all the four corners of the will.” In the paragraph of the will in question which follows the one already quoted the testator provides that “The following named persons, having already received their share and proportion of my estate, are not considered in my will as follows: heirs of Abraham Mickley, deceased, heirs of Henry Mickley and Mrs. Clara Funk.” Carefully considering the will as a whole, it is very evident that the main thought in the mind of the testator was equality in the shares of his estate, and not equality among the individual legatees; and, in order to insure that equality, he makes as part of his will, or at least as the means of establishing the equality of the shares into which his estate is to be divided, the book of advancements which had been kept by him for that purpose. In this book it is admitted that Elizabeth Stephey, his daughter, is charged with advancements amounting to $2,280, beginning in 1850 and ending in 1866, with a tombstone and coffin, the latter presumably after her death. In the same book are contained charges against Abraham Mickley extending from 1855 to 1873, amounting to $3,735.35. In addition to the advancements made to Elizabeth Stephey, as contained in the book of the testator, he made advancements of $400 to each of "her three children Feb. 1st and Sept. 17, 1888, with which they admit they should be charged and for which they gave him receipts in the following form: “ Received of Grandfather Mickley my portion of my mother’s legacy Three Hundred Dollars,” and a similar receipt for $100 each. It does not clearly appear in the evidence when Elizabeth Stephey died but, as no charge is made in the book against her after the one for the tombstone and coffin, it would appear as if the advancements were made for tombstone and coffin for her after her death. This entry and the form of receipt which the grandfather took from his grandchildren, who were the children of Elizabeth Stephey and which antedates his will, would seem to indicate what his intention was as to the share which the heirs of Elizabeth Stephey were to take. The receipts are for each one’s portion of “my mother’s legacy.” It is true that the will is made about five years after these receipts were given; but, taken in *555connection with the book which was in evidence and to which the testator specially refers in his will, they are in onr opinion significant. Looking “ into the four corners of the will ” the court below reaches a conclusion as to its general scheme by the reference to the heirs of Abraham Mickley who are said by the testator to be “not considered in my will” “ having already received their share and proportion of my estate.” In the book of advancements referred to, as before stated, Abraham Mickley is charged with the sum of $3,735.35. There is no evidence whatever of any advancements having been made to his heirs after his death. The court concludes therefore that the share of Abraham’s heirs, as referred to in the will, was exhausted by the advancements made to their father in his lifetime. The appellant very ingeniously endeavors to destroy the force of the position taken by the court below by arguing that, there being no evidence in the book or elsewhere of advances being made to the heirs of Abraham Mickley, it will not do to assume that no such advances were made, and that it is also an assumption to say that the advances charged to Abraham Mickley in the book were regarded by the testator as those which influenced him in not considering the heirs of Abraham Mickley in his will. As to this it may be said that the general scheme of the will being fairly apparent from a common sense standpoint, and that scheme being in favor of the equality which the law favors, and the fact of the advancements to Abraham Mickley affirmatively appearing in the testator’s book, this fact cannot be rebutted by a mere assumption that there may have been other advancements not charged anywhere made to the heirs of Abraham Mickley after his death. Whilst it may be strictly and technically true that there is no evidence that “in point of fact nothing had been advanced to the heirs of Abraham Mickley,” it is quite as true that there is no evidence to show that anything had been so advanced. The court below was, therefore, in our opinion, justified in using the clause of-the will referring to the share of the heirs of Abraham Mickley and the facts relating thereto as they appear in the evidence as a help in the effort to reach a conclusion as to the intention of the testator. We have no doubt as to the correctness of the conclusion reached. Fairlamb’s Appeal, 100 Pa. 385, is in point and is a case in which the conclusion reached was based upon grounds much *556narrower than those upon which this case stands. The evident intent of the testator will be best carried out by distributing his estate in accordance with the last report of the auditor based upon the opinion of the court below.

The decree confirming that distribution is, therefore, affirmed, and the appeal dismissed at the costs of the appellant.