Hoch's Estate

154 Pa. 417 | Pa. | 1893

Opinion by

Mk. Justice Williams,

The testatrix intended to dispose of her entire estate by her will. The words she has emplojmd show her purpose, and are-sufficient to make a valid testamentary disposition of her property. The debatable question raised in the court below, and on this appeal, is over the mode of distribution provided for. The learned judge of the orphans’ court held that the language of the will required a per capita distribution between two living children of the testatrix, and eight grandchildren, the issue of a deceased son. By this mode of distribution the estate would be divided into ten equal parts. The two surviving children of the testatrix would take each one tenth, and the eight children of the deceased son would bake each one tenth. He accordingly decreed distribution per capita among children and grandchildren in equal shares. The appellants contend that the distribution should be per stirpes. This mode would divide the estate into three equal parts corresponding with the children of the testatrix, of which each surviving child would take one, and the living issue of the deceased child would take the other, as the representatives of their father, and divide it among themselves share for share alike. This would have been the course of distribution under the intestate laws. The act of April 8,1888, P. L. 816, provides that where an intestate leaves “ descendants in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild or other descendant, each child of the intestate shall receive such share as such child would have received if all the children then dead leaving issue had been living at the death of the intestate.” In other words, such an estate must be divided into as many shares as there are children living, and children dead leaving issue to represent them. These shares must be divided according to the words of the same statute in the following manner: “ In every such case the issue of such deceased child, grandchild, or other descendant shall take by representation of their parents respectively, such share only as would have descended to such parent at the death of the intestate,” if such parent had then been living. The intestate laws therefore define for us the words “ lawful heirs ” and furnish the rule for making distribution among them. This is per capita, if the children of the intestate are living at the death of the ancestor. It is per stirpes, if some of the children be living, and others be dead, but have living issue to repiesent them; so that the distribution is to “ descendants in different degrees of consanguinity ” to the intestate. We follow the rule of the intestate laws in all cases when the testator has not clearly adopted a different one. It must be applied in this case unless the will before us requires us. to substitute for it a mode of distribution laid down by the testatrix.

The words in the will that refer to the distribution of the estate are, “ to be divided in equal shares to my legal heirs.” This makes it necessary to inquire first who the legal heirs of Mrs. Hoch were. The facts are in no doubt. There are two children of the testatrix, and eight grandchildren, issue of a deceased son. They stand in different degrees of consanguinity to the testatrix, and, under the intestate laws, the eight grandchildren represent their deceased father and, together, stand in his place. Looked at with reference to distribution under the intestate laws, the heirs are thus seen to be three, one of whom is represented by eight children. The next question is whether the testatrix shows a purpose to disregard the distribution provided for by the intestate laws and substitute a method of her own. The only words on which this can be affirmed are the words “in equal shares.” But this is the legal rule. Her estate if she had made no will would have been parted into three equal shares. Each of her living children would have taken one of these. The third would have gone to the living issue representing her deceased son, as his equal share. The share would then have been subdivided into eight equal parts and distributed among his heirs, each of whom would have taken through him. Now if the testatrix had directed her estate to have been divided in equal shares among her descendants, these words would have placed them all in one class and provided a per capita distribution among them. So if she had said “ I want my estate to be divided among my children and grand-' children in equal shares.” But the distribution she directed was among her “legal heirs.” This refers their ascertainment to the laws of the state. She does not undertake to define her meaning so as to change the legal rule, but expressly adopts it. Her further direction is that among her legal heirs the distribution shall be made in equal shares. This also is the rule of the law. It would not be profitable to enter upon an examination of the cases cited in support of the rule adopted by the orphans’ court. There is a line of well-considered cases beginning with Baskin’s Appeal, 3 Pa. 304, which we regard as settling the law in accordance with the views now expressed* and it is our purpose to adhere to the rule. The intestate laws must control questions of distribution arising upon the settlement of estates of testators as well as intestates, unless the testator has clearly provided a different mode in his will.

The decree of the orphans’ court is reversed and the record remitted, that the distribution may be made in accordance with this opinion.