Opinion by
The Federation of JeAvish Charities presented to the Orphans’ Court a petition for a declaratory judgment. All of the persons having any possible interest, present or remote, vested оr contingent, Avere joined in the 'petition.
In
Eureka Casualty Co. v. Henderson,
The facts in the instant case bring it within the aforesaid rеquirements; the problems involved are so unusual and difficult, litigation was so imminent and inevitable, and the peril to the Federation was so great and immediate that we consider this to be an aрpropriate matter for a declaratory judgment.
Morris Lifter died August 16, 1948, leaving a wife, but no issue. His will dated January 24, 1947, was long and very involved — it covered 19 printed pages. Testator, after the usual provisions with respect to his debts and funeral expenses, made certain pecuniary gifts. In the 7th paragraph of his will he created a trust to pay |!60 a month to his sister, who has since died, and gave all the rest of the net income to his wife for her life, with a discretionary power in the trustees to expend principal in her behalf. His wife is still living.
We then come to the pertinent and impоrtant provisions here involved: “EIGHTH: Upon the death of my wife this trust shall terminate and the principal * of the same, as it may then be, shall he paid over and distributed as follows:
“A. Personal Bequests [There then follow 12 bequests, some of them conditional and detailed.]
“B. Charitable Bequests [Tеstator made 5 charitable bequests.]’ -
“(C)- Residuary Estate
“(r) All the rest, residue and remainder of the said trust estate shall.be paid over to the Federation of *230 Jewish Charities of Philadelphia for the purpose of erecting, and provided they shall erect (beginning such erection within a period of not more than five years from the date of my death) a building for such humanitarian purpose or purposes as in the judgment of said Federation is most urgently needed at the time of such distributionsuch building to be known as Morris and Effie B. Lifter Building; provided,
“1st — that if at the time of the death of my said wife, my said sister Annie Lang is living, the Federation shall bind itself legally to continue thе payment to her of the sum of $60 a month as long as she lives; and provided,
“2nd — that the building so to be erected shall be free of all mortgages and ground rents and shall be paid for fully with the amount bequeаthed to the Federation by me.
“In case the conditions of the foregoing bequest to the Federation of Jewish Charities of Philadelphia are not met within 60 days from the date of my death and the gift to the Federation therefore does not become oрerative, or if for any other reason or reasons the gift to the Federation does not become operative, then and in such case I direct that the remainder of my residuary еstate shall be distributed among, and I give, devise and bequeath the same to, .subject to an agreement among them to pay my sister $60 a month as aforesaid, those persons-to whom I have made-bequests -under items (a) to (1) both inclusive, of this paragraph, each in the same proportion, as the amount distributable to him, her or it, bears to the aggregate total to which all such рersons are entitled to take under said items (a)'to (1) both inclusive.” .......
A reading of the will makes it apparent that some of the provisions in the Eighth Paragraph are conflicting or at least create uncertainty:- -'.W«.-shall -therefore *231 approach the problems in the light of the following principles:
The intention of the testator is the pole star in the interpretation of every will and that intention must be ascertained from a consideration of the entire will, including its scheme of distribution as well as its language, together with all the surrounding and attendant circumstances:
Lyle Estate,
A Court hаs no power to rewrite a will to supply a testator’s unexpressed intent, or to cover circumstances or conditions or contingencies which he apparently did not for seе or provide for.
Moreover: “The Court is always reluctant to supply words of material import to a will: Elkins’ Estate,
“ ‘Words and phrases may be supplied or rejected when warranted by the immediate context or the general scheme of the will, . . .’: Bender v. Bender,
“A word or words may be supplied where thеre is a clear inference from the whole will that the words were omitted [by mistake]: Hellerman’s Appeal,
We shall first analyze, in the light of the foregoing principles, the various- provisions оf the residuary gift to the Federation contained in the Eighth Paragraph of the will.. . Mr.: Lifter , directed that- the remainder- of
*232
his residuary estate,
which arose and, became payable and distributable upon the death of his wife,
shall be paid to the Federation for the purpose of erecting and provided they shall erect, a building for such humanitarian purposes as in the judgment of the Federation is most urgently needed
at the time of such distribution.
Were that all of the testamentary provision its meaning would be clear. However, there was inserted after the word “erect” the following parenthetical clausе which is the cause of the present controversy: “(beginning such erection within a period of not more than five years
from the date of my death)”.
The appellants, who are the ultimate contingent beneficiаries, contend that this parenthetical clause was a condition precedent and that it necessitated and required, as, in its isolated context, it clearly and expressly stated, thе Federation to begin the erection of such building within five years of the testator’s death. Cf.
Thompson’s Estate,
. . Appellants, would-avoid these conflicts and absurdities, by. the .ingenious .contention'that .the testator '.meant *233 by the parenthetical clause that the gift to the Federation should take effect only if testator’s wife died within five years after his death, and only if the Fedеration commenced to erect the building within that five year period. The testator not only did not say that, but equally important, such a construction is contrary to and would utterly defeat testator’s main intent, as well as the general scheme of his will, and it is so far-fetched and unreasonable that it cannot be adopted.
Testator further provided: “In case the conditions of the foregoing bequest to the Federation . . . are not met within 80 days from the date of my death and the gift to the Federation therefore does not become operative, . .. then and in such case I direct that the remainder of my residuary estate shall be distributed among, ...”. The Federation, as we have seеn, did not commence erecting the building within the period of five years from testator’s death, and obviously they could not pay for such a building in full with the testamentary bequest until they received it after his wifе’s death; but they did accept formally and in writing the bequest and agreed to the conditions thereof within 60 days from testator’s death.
We hold that this was a sufficient compliance with the language, meaning and intent of this paragraph. The Federation has met or complied with the conditions or requirements. “Met” as used in this sentence does not mean “performed”; it means “agreed tо”.
We believe it is clear from a study of the entire will that the testator wished and intended (1) generally, (2) particularly, and (3) by the scheme of his will, to give the remainder bf his residuary estate to the Federation of Jewish Charities, subject, however, to certain conditions: (a) provided they would erect a building for humanitarian purposes; (b) provided tbe building was. known -as “Morris and. Effie B. Lifter *234 Building’? ;Jo) provided; the building- - so • erected. should bе free of.-all mortgages .and ground ren.ts;,(d) provided it woukl not cost.more than the amount bequeathed to the Federation bythet estator; (e) provided the erection of the: building was commenced within five years after, his wife’s death; and (f) provided that the,Federation would agree to accept the bequest with all its conditions, within‘60 .days. from, the testator’s death., ; ,.t .
We are convinced that, the parenthetical clause erroneously expressed testator’s;intention; and that it is clear from the language and scheme of his entire will that the .wqrd “wife’s” .was omitted by mistake from the; ,parenthetical clause; and, .that. his .intention was, as found by the auditing Judge and the Court ,en banc, that the building in question should be commenced ;within a period of -five years from the date оf , “my wife’s death”... .This ¡mistake, was- , corrected in and .by the. decree ¡of ¡the., Orphans’ Court .which interpolated the Word “wife’s’’ in, the proper position in the parenthetical clause,',., thus, 'carrying ,opt., the testator?s>,.general ,;and particular intent;;, „ , >
• Decree, affirmed.; rall- costs,. as. well; as the fees, and expenses of the guardian and trustee ad litem, to be paid by, the Federation of .Jewish Charities.
; M,r. , , Chief . Justice .Hqrace Stern and Mr. Justice Allen■ M. Stearns took no part in the consideration or decision of this. ease.. ¡..¡,,- ■ .tv ' .....
Notes
I talieA throughout, oursh