133 A. 558 | Pa. | 1926
Appellant's statement of question involved is as follows: "Have the children of testator a vested remainder where a will provides 'I give devise and bequeath all the rest residue and remainder of my estate real personal and mixed, to my beloved wife Matilda Heath for and during the term of her widowhood, or as long as she shall remain my widow and at the termination of her widowhood either by marriage or death, I give devise and bequeath the same to my children then living their heirs forever — and if there should be a child or children of any of my children then deceased they or it shall have the share of the deceased parent'?" *338
Whenever, from now on, in this opinion, the "testator" is mentioned, we mean Thomas Heath, the maker of the above will, who was the grandfather of appellant.
Testator made his will in September, 1862, and died in January, 1874; his widow, the life tenant, died in May, 1925. It is conceded that, at the time of the latter's death, testator's estate was divisible into three parts; concerning two of these parts there is no question, but the disposition of the other third gives rise to the present contest.
Charles E. Heath, a son of the testator, to whom the third in controversy would have belonged had he survived the life tenant, died in 1915. He left a will wherein he gave the residue of his estate "and whatever interest I may have in the estate of Thomas Heath, my father," to his son, Howell E. Heath, the present appellant. Two other children of Charles also survived their parent.
Appellant claims that the remainders created by testator were vested and that consequently the one-third interest of his father passed under the latter's will to him, Howell E. Heath; but the court below held the remainders to be contingent, and awarded the one-third in controversy to the three children of Charles E. Heath, thus giving to appellant but one-ninth of the grandfather's estate, instead of one-third; hence this appeal.
The auditing judge determined that the phrase "then living," as used by testator, immediately following a reference to the termination of the widow's estate, as it does, means and was intended to mean "that the gift in remainder is to those of the children [of testator] who might be living at the termination of the precedent estate"; and that, since appellant's parent was not then living, the parent's interest in testator's estate necessarily passed under the latter's will to all of such parent's children, — in other words, that it did not pass under the deceased parent's will, and, therefore, could not be awarded to appellant alone. This construction *339
was affirmed by the court below in banc, both on what it conceived to be the plain meaning of the words of the will itself, and on the authority of Mulliken v. Earnshaw,
The will before us indicates that testator knew how to create a life estate in his wife followed by vested fees absolute in his children, for, in the item immediately preceding the one now up for interpretation, he provided thus: "I devise to my . . . . . . wife . . . . my burial lot . . . . . . for and during the term of her natural life and at and immediately after her decease, to my children as tenants in common their heirs forever." In this item we have a simple devise without any words of contingency, or language susceptible of such construction; but, in the very next item, — the one with which we are here concerned, — testator, instead of simply giving the property involved to his children, as in the preceding item, says that, "at the termination" of the life estate, he gives the property to his children "then living," and, "if" any of his children not then alive should have left a child or children, "it or they shall have the share of the deceased parent."
In referring to Mulliken v. Earnshaw, supra, relied on by the court below, appellant frankly states in his printed argument: "The words of the will in this case are so nearly the same as in the case at bar that it is conceded there is no possible way of distinguishing the two except to say that the testator [in Mulliken v. Earnshaw] died long after 1874 [the date of the death of the present testator], and consequently this case cannot control in view of the ruling in Hood v. Pennsylvania Society [
This brings us to a consideration of the Hood Case. There, the remainder was held vested on the ground that the testator had used language which, "it was practically conceded," according to the interpretation generally placed thereon "at the date of his will," created a vested interest in those who were to take after the life *340 tenant; the court said, "That being the generally accepted meaning of the language at the time the testator used it, [it] must, in the absence of anything to the contrary, be accepted as the expression of his actual intent."
Appellant argues that the doctrine in the Hood Case should be applied to the present case, and that, if that course be followed, we are obliged, under the law as it was settled by our decisions at the time when the will now before us was made, to hold the estate here in controversy to be vested, not contingent; but we think appellant seeks to give too broad an application to the doctrine on which he relies. When properly understood, Hood v. Penna. Society simply decides that the "generally accepted meaning" of the language used by the testator when he made his will should be considered. The Hood Case does not decide that, in passing on a particular will, the courts must examine and hold themselves bound to apply all decisions, prior to the date of the will, construing language bearing a similarity to that used by testator, although this, in effect, is the import which appellant claims for that decision.
It cannot be said, however, that the law as it stood in 1862 or 1874 requires the construction of the will which appellant contends for. The mere fact that certain previously-decided cases happened to construe wills couched in language somewhat like, but not the same as, that employed in the one up for interpretation, will not warrant a court in holding that the words used in the latter had, because of those prior decisions, acquired a fixed judicial construction, — much less a generally accepted meaning, — which had to be adhered to under all circumstances. As correctly said by Judge GEST, speaking for the court below in banc: "Unless the phraseology is identical with that of wills which had been [previously] construed, or if not identical is at least so similar as to afford a fair basis for the presumption that the testator was familiar with [the previous construction], it *341 would be . . . . . . rash to assume that he had it in mind and intended to follow it": see opinion reported in 7 Pa. D. C. R. 216.
With the rule in the Hood Case thus understood, it may be seen that the decisions relied on by appellant, made prior to testator's decease, where the wills involved contain somewhat-like language, but with differing context and used under different circumstances, cannot properly be held to have given a settled construction to the language employed in the present will. In the first place, as was recently said by this court, in Kirkpatrick's Est.,
As a final word in regard to Hood's Appeal, we adopt the following excerpt from the opinion of the court below: "Many cases have been decided where the rule of Hood v. Pennsylvania Society has been disregarded or passed sub silentio . . . . . .; thus, in Long's Est.,
Carstensen's Estate,
In the present case, the children of deceased remaindermen take the shares their respective parents would have received if alive, which is true also of Carstensen's Estate and Mulliken v. Earnshaw; but the language to this effect differs in the several wills, and, when seeking for the meaning of a testator, differences in expression may be significant, as also may be the light thrown on a particular devise by the use of a form of expression in another part of the will under investigation. For instance, the language in the immediately preceding item of the present will, which, as previously noted, indicates that testator knew how, in apt words, to create an unquestionable vested remainder when he desired to do so, *343
has some relevant force in construing the item with which we are immediately concerned. It was just such considerations as here pointed out, and which occur in almost all will cases, that led Chief Justice SHARSWOOD to say, in Fox's App.,
We agree with the court below that, at the date of the will under consideration, the language used in the particular devise now before us had no "settled construction" and that the real question is as to the intention of the testator, — Did he intend to create vested or contingent estates for his children? In this connection, appellant calls attention to Groninger's Est.,
The assignments of error are overruled and the decree is affirmed at cost of appellant.