221 Pa. 201 | Pa. | 1908
Opinion by
In 1843, Sarah Lukens Keene, an intelligent and discriminating person, being possessed of an ample fortune, made a will, wrote it herself, disposing of her estate, consisting of real and personal property. She died in 1866, and her- will was in due time admitted to probate. It has been the cause of much litigation as will appear by reference to our own cases, which show that in one form and another questions involving the real or supposed rights of persons directly or contingently interested in its provisions have arisen in three different proceedings. It was suggested at the argument that the question now raised had already been decided by this court in the former cases, and is therefore res adjudicata. We have concluded, however, after a careful examination of our former cases, that the construction of the residuary clause as it affects the ultimate interests of legatees was not before the court for consideration, and nothing decided in those cases is conclusive of the rights of the parties here. It is true that some of the views expressed by the learned justices who wrote the opinions in the former cases relate to the construction of the residuary clause, but nothing therein decided was intended to be a final determination of the rights of ultimate residuary legatees. That the question now raised is a close one, not free from difficulty, and that the clauses of the will under consideration are susceptible of several different interpretations, radically differing in results, is made apparent by a review of the decisions of this court, the opinions of the courts below, and the argument of learned counsel in dealing with this subject. -In Keene’s Appeal, 60 Pa. 504, the only question decided was that the petitioner, who claimed to have a possible or contingent interest under the will, had no such present interest, immediate or remote, as to give him standing to require an accounting and settlement of the estate. This case was decided in 1869, at which time Mr. Justice Agnew, forecasting the difficult questions that might subsequently arise, but nothing in that case demanding their decision then, in delivering the opinion of the
In Austin Keene’s Appeal, 64 Pa. 268, the petitioner taking advantage of the act of 1869, passed after the opinion in the former case had been handed down, and evidently intended to give relief from the consequences of that decision, filed his petition, as an alleged owner of a contingent interest in the personal property of the testatrix, asking for a citation requiring the executrix to file an account. The court below dismissed the petition and refused the citation. On appeal this court reversed the decree of the'court below and in doing so pointed out that under the act of 1869, which in terms gave the owner of any contingent interest in the personal property of a decedent the right to require an accounting, the petitioner had a standing to ask for a citation for this purpose. The only question before the court in that case was whether under any of the provisions of the will, the petitioner had such a possible contingent interest as to give him standing under the act to require an accounting. It was decided that he had, and in arriving at that conclusion the court reviewed the situation as it then appeared, freely discussing several possible contingencies that might arise, but did not undertake to finally determine the ultimate interests of the residuary legatees. Mr. Justice Sharswood, who delivered the opinion of the court in that case, and whose views on any question of law are always entitled to most respectful consideration, did discuss many contingencies that might arise in the final distribution of the estate, and suggested that if Ellen Keene Mitchell should die without issue or without exercising the power of appointment, which she did, there would be an intestacy as to the residuum which would go to the next of kin. It is clear, however, that this was intended only as an expression of opinion on the possible and probable interpretations of the residuary clause when that question should arise and was not intended to be a final conclusive determination of the rights of the parties either presently or remotely interested.
In Brock’s Appeal, 1 Pennypacker, 36, a different question arose, although incidentally the interpretation of the will was involved. Certain real estate of which Sarah Lukens Keene,
Four different constructions are suggested as possible under these clauses of the will: First, that an absolute estate vested in the favorite niece, Ellen Keene Mitchell; second, that Ellen Keene Mitchell took a life estate with remainder to her children, if any, and on her death without issue, and without exercising her power of appointment, to the children of all three of her brothers, ITenry, James and Lenox, appointees of the power; third, on the death of Ellen Keene Mitchell, without issue and without having been able to exercise the power of appointment, there was an intestacy as to the remainder; and fourth, as giving Ellen Keene Mitchell a life estate in the residue with remainder to her children, if any, absolutely, and on her death without issue, and without having exercised the power of appointment, or being unable to do so on account of
We find no authority to support the second proposition. This position assumes that the power of appointment in favor of the brothers and their children amounted to a trust in favor of the possible appointees, ’but certainly this cannot be the law, for, the power was only to be exercised in the event of Ellen Keene Mitchell dying unmarriéd and was not an absolute imperative direction to make an appointment, and even if she remained unmarried, under the power she could designate “ whichever of her brothers she will consider most worthy to inherit her bequest and mine.” It would seem necessarily to follow that possible beneficiaries in the event of a discretionary power being exercised in their favor can claim no rights
As to the third proposition it has been well said that every intendment is to be made against holding a person to die intestate who sits down to dispose of the residue of her property.11 In arriving at the intention of a testator, courts do not look with favor upon a construction of a will which leads to an intestacy, and especially is this true where, after having made specific bequests and devises covering a large part of the estate there is a residuary clause evidencing an intention to dispose of every part of it. An intestacy is never favored and a construction should not be adopted which leads to such a result if it can be avoided by a reasonable interpretation of the will. In the present case we think the testatrix did not intend to die intestate as to any part of her estate. She seems to have thought of and arranged for every possible contingency that might arise. Her intent is clearly manifested in the bequest of $30,000 to her niece, and a similar disposition of the residuum is made apparent without doing violence to any of the words used. As to the $30,000 legacy she provides that the interest shall be paid to her niece during life and after her death it was to go to her children, if any, absolutely. Her first concern was for the comfort of her favorite niece which she undertook to provide for by giving her the income of $30,000. At the time of the execution of the will the niece was unmarried, and, the aunt anticipating her marriage, and desiring to provide for her children, if any, gave them the absolute estate upon the death of the niece. She did not stop here, but foreseeing that her niece might die without issue, the testatrix provided for that contingency by giving the income to her brothers, Henry and James, during their lives and the principal was to go absolutely to their children. Again, in order to take care of another contingency, the testatrix provided that the niece if she married without the consent of the aunt, should only have the income of $10,000 and in that event the disposition of the $10,000 was to be the same as of the larger sum. Here, then, is presented a case in which an intelligent testatrix by her will has provided for almost
As to the fourth proposition we concur in the conclusion reached by the auditing judge which was affirmed by the court in banc, and that is that Ellen Keene Mitchell took a life interest in the residuary estate, subject to the same “ conditions ” which we construe to mean the same provisions as she took the legacy of $30,000, and the niece having died without issue and without having exercised the power of appointment, the principal went to the children, lawful issue of her
Decree affirmed.