Grier Estate
Supreme Court of Pennsylvania
May 2, 1961
reargument refused May 31, 1961
403 Pa. 517
Grier Estate.
B. I. deYoung, for appellant.
John Harper and William H. S. Wells, with them John R. Suria, and Saul, Ewing, Remick & Saul, for appellees.
OPINION BY MR. CHIEF JUSTICE JONES, May 2, 1961:
The present appeals question the interpretation placed by the court below upon the will of Jay R. Grier who died resident in Philadelphia on June 13, 1958, at the age of 87. Mr. Grier had never married and left to survive him as his heirs at law and next of kin three cousins, two on his maternal side and one paternal. For 67 years he had been a member of the bar of Philadelphia County and, in the practice of his profession, had acquired a reputation as a specialist in probate and orphans’ court matters. His will is typewritten, the typing evidently being his own work. The validity of the will is undisputed. The sole question of law involved is as to the quantum of the decedent‘s estate made subject to his testamentary dispositions.
By Item One of the will, the testator ordered and directed his executors to sell his personal property and, “after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations, as hereinafter bequeathed, that is to say:” Then follow the names of four individuals (including the two maternal cousins) and twenty-three eleemosynary corpo-
Following the last of these monetary allocations, there is a blank space in the will, about two inches deep and the width of the page; and, immediately following the blank space is Item 2, which is the concluding dispositive provision of the will.
By Item 2, the testator authorized and directed his executors to sell his residence property in Germantown and “to distribute the proceeds to and among the legatees as hereinbefore [sic] named.” This property was the decedent‘s only realty and had a value of approximately $6,000.
The testator nominated and appointed two friends as executors of the will and signed it on May 7, 1955. Upon the death subsequently of one of the named executors, the testator on March 18, 1958, wrote in longhand on the bottom of the will, and signed, a codicil appointing a substitute co-executor for the one who had died.
It is agreed on all sides that at least the last named beneficiary and monetary allocation under Item One was typed in a portion of the blank space some time after the testator had typewritten and executed the rest of the will. This is evident from the fact that the type in the last specification is lighter in shade than the preceding typing and the left-hand margin is indented by the width of three type spaces beyond the margin established when the will was originally written. There is also a deviation of two type spaces in the marginal indentation of the three named beneficiaries immediately preceding the last one. It is possible, therefore, that those three specifications were also typed in the blank space subsequent to the testator‘s
The auditing judge concluded that the decedent‘s testamentary intent, as evidenced by the written words of his will, was that the whole of his net estate “after all debts, inheritance taxes and the like have been fully paid” should be distributed “to and among” his testamentarily named beneficiaries in the proportions that their respectively specified monetary interests in the decedent‘s estate bear to the total sum of all such designated interests. On exceptions to the decree nisi entered by the auditing judge, the court en banc reversed and substituted the final decree now here on appeal. This decree, instead of awarding the “residue” of the decedent‘s estate after payment of “all debts, inheritance taxes and the like” to the testamentarily named beneficiaries, restricts the distribution to them to the specified sums of the monetary allocations. The result is an intestacy as to four-fifths of the decedent‘s estate available for distribution and, this, the court awarded to the testator‘s three cousins. The maternal cousins, as already stated, are among the named beneficiaries in the will. But, the testator bequeathed nothing to his paternal cousin whom he had neither seen nor heard of for years, according to the evidence adduced at the audit. The testator‘s deliberate intent to exclude that cousin from sharing in the distribution of his estate could hardly be more evident.
The primary testamentary intent, as plainly expressed in Item One of the will, is that “any and all” of the decedent‘s personal property should be sold and “after all debts, inheritance taxes and the like have been fully paid” the “residue” (i.e., what remained after the mandated payments) should be distributed
The sums specified in the pecuniary allocations were merely for the purpose of spelling out the respective proportionate interests of the named beneficiaries in the “residue” which the testator set apart for distribution “to and among” them. How else could the executors distribute the testamentary defined “residue” of the converted personalty “to and among” the beneficiaries named? Only by so construing the monetary provisions of the will can effect be given to the decedent‘s manifest intent to die testate with respect to the whole of his estate available for distribution. “One who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion thereof: Provident Trust Co. of Philadelphia v. Scott, 335 Pa. 231, 6 A. 2d 814; Duffy‘s Estate, 313 Pa. 101, 169 A. 142; Appeal of Ferry, 102 Pa. 207; Miller‘s Appeal, 113 Pa. 459, 6 A. 715. If possible to do so, a will must be construed to avoid an intestacy: Rapson‘s Estate, 318 Pa. 587, 179 A. 436; Boland v. Miller, 100 Pa. 47.” Cormany Estate, 357 Pa. 296, 299, 53 A. 2d 731. In the instant case, the court below made no apparent attempt to construe the decedent‘s will so as to render him testate, if possible, as to the whole of his estate for distribution.
Use of the allocated sums, instead of percentages or fractions, to determine the legatees’ proportionate in-
The testator could not have intended that the monetary allocations specified for his named beneficiaries should be the limit of their participation in the distribution of his personal estate, all of which, after payment of all debts and taxes, he had ordered and directed his executors to distribute “to and among” them. He undoubtedly knew that the total of his specified monetary allocations to beneficiaries was but a portion of the estate that would likely be available ultimately for distribution; and he must also have realized that, without knowledge of what his debts and the inheritance and estate taxes would amount to at his death or what the value of his securities and other personal property would be when converted after his death, he could not apportion the whole of his net estate among his beneficiaries by bequeathing to them fixed lump sums.
The design of the decedent‘s will, that the residue of his personal estate, after payment of all debts and taxes, should be distributed to his named beneficiaries in the proportions relatively determined by the mone-
This case bears a certain analogy to cases of lapsed or void legacies. Any lapsed or void legacy, bequeathed to a person not within the statutorily specified consanguineous relationship, falls into the residue and passes to the residuary legatees “in proportion to their respective shares or interests in the residue.” See
Actually, the court below did not interpret the will; it merely reconstructed it. By placing one unwarranted
With the word “residue” thus denied its intended meaning, the court below derived its ultimate conclusion by assuming that the specified monetary allocations to the named beneficiaries constituted fixed pecuniary legacies which would have to be deducted from the balance for distribution before a residue would be determinable. This assumption plainly begged the question for decision. The court‘s problem was to interpret the will so as to give effect to, and harmonize, all of its parts in order to effectuate, if possible, the testator‘s intent. As lately recognized in O‘Brien Estate, 381 Pa. 322, 325-326, 112 A. 2d 178, “It is hornbook law that a testator‘s intention must be ascertained from a consideration of the entire will; and that
Having thus concluded that there existed a different residue than what had been disposed of by the testator‘s order and direction to his executors in Item One, the court below then drew the further unsupportable inference that the purpose of the blank space was to enable the testator to type therein later an additional residuary clause, which he never did. There is nothing written or intrinsic in the will to justify such an inference. The only permissible inference to be drawn from the will, itself, as to the purpose of the blank space, is that the testator could later type therein the names of additional beneficiaries with monetary allocations to each, just as he unquestionably did in at least one instance. That is the only fact from which any inference as to the purpose of the blank space can justifiably be drawn. All else is mere guess or speculation. Inferring without basis that “This aged man either wholly forgot to complete his will [by filling in the blank space with a further residuary clause] or died before he made up his mind with finality“, the court en banc gave controlling effect to the blank space, where obviously nothing is expressed, rather than to what the written words of the will plainly import, viz., that what remained of his estate‘s converted personalty “after all debts, inheritance taxes and the like have been fully paid“, should be distributed “to and among” his named beneficiaries.
The opinion for the court below further argues that, since the will provides in the case of each of the monetary allocations that it should be “free of taxes and absolutely“, the only funds with which the
The decree of the court below is reversed and the record remanded for the entry of a decree in accordance with this opinion; the costs to be borne by the estate.
The majority has rewritten testator‘s will. Testator directed his executors after the payment of debts, etc., to distribute the residue to and among the following named persons and/or corporations as hereinafter bequeathed: “To Martha G. Michael, the sum of Two thousand dollars, ($2,000.00) free of all taxes, absolutely. To Laura Sand, the sum of One hundred dollars ($100) free of all taxes; To The First Presbyterian Church in Germantown, its successors and assigns the sum of Ten thousand dollars ($10,000.00) free of all taxes, absolutely.” These are three examples of twenty similar gifts. To say that this experienced probate lawyer did not know the difference between (on the one hand) twenty-three pecuniary gifts each in a specified dollar amount, and each followed by the words “free of all taxes“, with (on the other hand) a gift to each legatee of a percentage of his residuary estate is so far-fetched as in my judgment to be incomprehensible. The majority (1) ignores or renders meaningless the clause at the end of each pecuniary gift “free of all taxes” and makes the legatee pay his share of all taxes, and (2) then changes the words Two thousand dollars ($2000) etc., to “a percentage” — words as different as day and night. A Court certainly should not rewrite a testator‘s will when the dispositive language is so clear, and the Court‘s “rewrite” must replace day with night.
The blank space in the will was obviously left open by the testator for a later insertion by him of additional legacies, which the majority admit testator actually made. After the will was written testator concededly added a legacy in the blank space: “To Miss Laura Sand, of 5321 Wayne Avenue, Germantown, Philadelphia, the sum of Two hundred and fifty dollars ($250), free of taxes and absolutely in appreciation of her many kind acts from time to time.”
I would affirm the decree on the very able opinion of President Judge KLEIN.
DISSENTING OPINION BY MR. JUSTICE BOK:
I dissent because I feel that the Majority has unwarrantedly construed the will and presumed the testator‘s meaning: time and again it announces what was his primary intention, or purpose, or design, calling them plain or manifest or undoubted or unmistakable, as things that he undoubtedly knew or must have realized, and then it rewrites the will in order to substitute percentages for dollar marks.
Such method of construction is proper when there is ambiguity in the will, and if the words within its four corners do not dissipate uncertainty, extrinsic circumstances may be resorted to, even by parole evidence. But where there is no ambiguity, rules of construction have no place, and the testator‘s intention must primarily appear from the face of the will: Battles Estate, 379 Pa. 140 (1954), 108 A. 2d 688; Beisgen Estate, 387 Pa. 425 (1956), 128 A. 2d 52. There is no ambiguity here.
I think it clear that this testator, who concededly was eighty-seven at his death and not only had practised law in Philadelphia for sixty-seven years but was a specialist in probate work, left a clear and unambiguous will. There is nothing uncertain about a direction to sell all personal property “and after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations“, naming four persons, one twice, and twenty-three charitable corporations. There is nothing uncertain about his putting a definite bequest in dollars after each name, plus the legend: “free of all taxes, and absolutely.”
In the only remaining item the testator told his executors to sell his one piece of real estate, which was worth about $6,000, and “to distribute the proceeds to and among the legatees as hereinbefore [sic] named“, and this must mean in equal shares to those specific legatees (not residuary legatees) named in Item 1.
This was the whole will. Looked at flat as a plate, it needs no construction or inferential interpretation. With a will that leaves part undisposed of, the law is that the remnant is an intestacy and passes to the next of kin under the
Why should we speculate, as the Majority does, that the testator meant something else when this is what he did, or why he left out the cousin whom he had not seen for years? The Majority says that “the testator‘s . . . intent to exclude that cousin . . . could hardly be more evident.” I see nothing evident about it: there may be a handful of reasons to explain the cousin‘s absence. Why should we guess at intention when the will, as a fact, is clear and no word within it needs
The clearest tell-tale that the will has no residue is the legend that each bequest shall be free of tax. A lawyer expert in probate law must know that taxes are to be paid out of something, and that the residue. The twenty-eight specific legatees are effectively separated by the legend from any residuary provision; the tax is passed along to someone not named as residuary legatee, and the specific bequests are not to be reduced by their proportionate shares of what has already been paid in taxes. They are as separate from the residue as if they had appeared in an item by themselves. The testator has made twenty-eight specific bequests and no residual disposition whatever beyond a direction to pay the tax. Had he added one name to take all that was left and added the same legend, all twenty-nine legatees would have had to share the tax; in such case the tax-free legend would mean nothing. Had he added one name without the tax-free legend, that person would have born the entire tax and taken the entire balance. Had Item 1 contained only two names, each to receive $100, it is unthinkable that they would take the whole residue of about $600,000.
Why speculate and interpret such a situation? The law has created its own compromise of myriad shadings of such facts by making the undisposed of remnant an intestacy. After all, the testator let his will sit and even republished it to include a new executor.
The Majority gives weight to the words “to and among” as indicating the recognition of a named group. But it cites no authority for any artful meaning of the words. Actually, they aren‘t relevant and don‘t affect the case, since there is no effective residue to which the words can apply, and the phrase in question therefore applies to nothing. The testator had not begun to make his actual residual dispositions. Why is it odd
There is a point beyond which, to achieve what only seems to be a good result, we should not stray about in the fabulous area of a mind‘s intention. Nor should we correct the testator‘s errors.
As for the presumption against intestacy and in favor of disposing of all that one has, it is met by the legally equal test that an heir is not to be disinherited except by clear language. Moreover, a presumption is of use only when there is need for it. It fills a gap, as Nature does a vacuum. This testator may well have intended to leave twenty-eight specific bequests and let the intestate law dispose of the rest. This is an obvious testamentary scheme for an expert lawyer and comes nearer to being his obvious intention, since nothing need be done by way of interpretation to reach it, than does another solution that requires artificial rules.
Mr. Justice BELL joins in this dissent.