86 Pa. Super. 312 | Pa. Super. Ct. | 1925
Submitted March 9, 1925. Eliza J. Kling, widow, died in 1912, testate, survived by two sons, Harry and George, both sui juris, and by no other descendants. Her will, admitted to probate, contained four paragraphs: (1) providing for her interment and for a tombstone; (2) bequeathing $50 to her son George; (3) appointing Noah C. *314 May executor. The 3d paragraph, about the meaning of which the parties differ, is as follows: "All the remainder of my estate, wheresoever found and of whatsoever kind, I hereby will and bequeath to my son Harry W. Kling, in trust, he to receive the income of the same during his lifetime if he will need any of the principal during his lifetime the trustee is empowered to pay him such sums of money at any time that he thinks he needs for his support."
This appeal was submitted here without oral argument. The printed record consists merely of the account of The Guardian Trust Company of York, Pa., trustee for Harry W. Kling under the last will and testament of Eliza J. Kling, deceased; the report of an auditor appointed to distribute the balance shown in that account; exceptions to that report; the opinion of the court dismissing the exceptions and confirming the report, together with the will of Harry W. Kling, who died in 1923, leaving a will, duly probated, on which letters testamentary were granted to Anna J. Smith, executrix. With nothing more in the record, we are not advised of the circumstances which led to the appointment of the trustee whose account is before us, and accordingly proceed on the assumption — which the briefs filed clearly warrant — that the single point for decision is the interpretation of the third paragraph of the will, i.e. what estate vested in Harry W. Kling?
The appellant is the executrix of Harry W. Kling, and claims the balance of principal, and accrued income, on the ground that his mother's bequest to him was absolute. George Kling, the appellee, claims the balance of principal and income on the ground that Harry W. Kling was the beneficiary for life only; that there was a partial intestacy, and that George took as next of kin to his mother. Both the auditor and the court below adopted the latter view and ordered payment accordingly. *315
We differ from that conclusion for several reasons. "In the interpretation of wills, ...... `it must be steadily borne in mind that it is not the province of the court to consider what the testator possibly intended, but only what intention is expressed in the language used, ...... a necessary conclusion, since a will is required to be in writing'": Biles v. Biles,
By comprehensive description, she gives the residue to her son Harry W. Kling. It is true, she says "in trust," — that is, she attempts to divide the title to the property into a legal interest in him as trustee, and into an equitable interest for his benefit — "he is to receive the income of the same during his lifetime." He shall receive all the income, not merely the net income; from a gift of the gross income there may be implied a gift of the property producing the income: Deniston v. Deniston,
The decree is reversed and the record remitted, with instructions to award the fund for distribution to the executrix of the estate of Harry W. Kling, deceased; costs of this appeal to be paid out of the fund for distribution.
