*1 Moltrup Estate. *2 Mus- C. J., 1966. Before October
Argued Bell, Roberts, O’Brien and Cohen, Eagen, Jones, manno, JJ. & for Good, appellants. him Ray D. with Ray,
John him M. with G. and Houston, Hilary James Lynch, for Speer German, appellee. & Cooper, Houston, Assistant Holland, Special G. Attorney Samuel Jr., Deputy Gen- Woods, Attorney Charles General, Edward for Friedman, Attorney eral, General, parens patriae charitable trusts. Commonwealth, by Mr. Chief Opinion January 4, Justice Bell, 1967: questions
The appeal involved are many the record confusing. principal However, two questions may be thus stated: Did unconsumed (1) property part which originally was of the residuary estate of Walter J. husband of E. Moltrup, Mary together Moltrup, accretions thereof, belong their son Merle as remainderman under the will his father, did such property belong appellants and all of others, appointees whom were under Mol- Mrs. trup’s will; (2) is Merle’s executor estopped from Merle’s claim asserting thereto aby prior accounting of the executrix of Mr. Moltrup’s estate?
Walter J. Moltrup died November 1, leaving a will dated March 16, 1935. He was survived his by wife E. who Mary Moltrup died August and their son Merle who survived both his father and mother and on September died 1962. Merle survived his by wife but left no issue. Yiola,
Several of appointees Mrs. Moltrup’s appeal will from a Decree of the Orphans’ Court which an sur in Mr. Moltrup’s executors’ account estate directed distribution to Merle’s executor of Mr. Moltrup’s un- consumed residuary including all the estate, accretions thereof. Under Mr. Moltrup’s his will, wife was the power and of donee of consumption, the further powers hereinafter referred to. The Or- phans’ Court further decided that under Mr. Moltrup’s his wife had no will, Mary absolute or unconditional of power appointment and, we that Mr. repeat, Mol- trup’s unconsumed residuary estate with all its accre- under his tions was distributable will to his son Merle, certain subject to limitations hereinafter set forth. The facts are so unusual and complicated that it is to from quote length necessary Walter J. Moltrup’s will.
“IV. my estate, and remainder of residue “All rest, now situate, and wheresoever character, whatsoever by give, acquired, devise, Ime, or hereafter owned, Mary Moltrup, my bequeath for and E. wife, and during with full her natural life, term of principal consumption and with and income, both may right I die sale of real estate which my possessed, not be I direct wife shall further any give give any required or to or bond, bonds, consumption concerning, and her use account of, given herein her. estate “V. my Mary Moltrup,
“Upon I E. wife, the death bequeath give, all re residue and rest, devise my not consumed life estate her her mainder bequeathed, in as the stock hereinbefore well time, paragraph Moltrup, my II* Merle **hereof, son, any my subject, trust or trusts that said however, may appoint concerning or make in her wife the same in the Last Will absence Testament, and, thereof, absolutely to him .**.
“VI. my my “It is will and intention that wife, wish, Mary Moltrup, right, judg- E. shall have her if, in and her Last Will and advisable, ment, and make to create all trusts she Testament, *4 my may Moltrup, in favor of Merle A. of son, wish passing any to him or estate virtue of interest this will. * will, gave paragraph his shares stock In II of Walter Company Mary Moltrup in to his trust Products wife Steel pay therefrom to dividends his son Merle for the income and to any stock, Moltrup Mary did not create trust B.
his life. agree parties that Merle entitled to this stock ab- all the and solutely.
** throughout, ours. Italics
165' “VII. predecease
“If Merle A. shall my my son, Moltrup, then the stock in II bequeathed hereof wife, paragraph to E. in my Mary trust wife, Moltrup, my son, I bequeath Merle A. devise and Moltrup, give, my for and term of natural her life with wife, during full of both consumption principal income thereof.
“VIII. “If Merle A. my predecease my shall son, Moltrup, then leaving lawful heirs to survive wife, any him, part of my estate unconsumed wife remaining by my at the time of her I and bequeath devise death, give, to the heirs my Moltrup. Merle son, lawful
“IX. at the “If, time of the death E. my Mary wife, Merle A. shall have Moltrup, my son, died, Moltrup, I leaving part no lawful then direct heirs, my estate unconsumed wife shall be dis- remaining by my posed of her will to whom in such amounts, and under such conditions as she sees fit.
“XI. “In the event of the death of my Merle A. son, prior without lawful the death of Moltrup, heirs, E. my Mary further event wife, Moltrup, disposition wife shall make no my any part of at estate unconsumed the time of my remaining her I and bequeath then devise all give, death, rest, of my residue and remainder estate so un- remaining my law, according consumed heirs the In- of the Commonwealth of Laws Pennsylvania testate of my at the time decease.” in effect the well It has been established long law Penn- intent polestar that a testator’s is the sylvania in- a will. terpreting
166 Pa. A. 2d the
In Hoover
417
207
Estate,
263,
840,
: “In
414 Pa.
Houston
(pp. 266-267)
Estate,
Court said
from
de-
prior
2d
the
592,
Court, quoting
201 A.
579,
“
:
586-587)
‘It is now hornbook
said
cisions,
(pages
polestar
the
intent
the
and
law
that
testator’s
is
(1)
his intent must be
prevail;
(2)
gathered
must
that
all
contained
(a)
from a consideration of
the language
will and
in the four corners
his scheme
(b)
his
surrounding
the circumstances
(c)
distribution
him at
time he made his will and (d)
existing
that
technical
or
of con-
facts;
(3)
rules
canons
struction should be resorted
if the
only
language
or
ambiguous
will is
or the testator’s
conflicting,
intent
is for
reason uncertain:
Dinkey
403
Estate,
Pa.
A. 2d
Pruner
168
400
179,
337;
Estate,
629,
Pa.
162 A.
626;
2d
Wanamaker
Pa.
159
399
Estate,
274,
”
A.
Hope
2d 201;
398 Pa.
A.
Estate,
159
2d 197.’
470,
“
“
‘. . .
‘It is not
what
Court
thinks he might
or would or
should have said
the existing circum-
what
Court
stances,
even
thinks he meant to say,
but what is the
meaning
his words. Kelsey Estate,
393 Pa.
143 A. 2d 42; Britt
513,
369 Pa.
Estate,
450,
In Woelpper’s 126 Pa. Appeal, Atl. 870 (1889), Court, speaking through Mr. Justice, later Chief said Justice, 572) : (page “In the con- Mitchell, struction of wills the general great and controlling is rule intent of the testator shall prevail. And intent is by his meant his actual intent. It often said, language Weidman’s App., Int. our Leg. quoted by brother in Han- G-reen cock’s and cited App., ‘The appellant, expounding will is not *6 question what testator but what is the meant, meaning his But words.’ by this was never intended say to that the testator’s when can meaning apparent be that disregarded, but, it cannot be have might what he got aliunde, , or even under meant, what perhaps circumstances he would only have but meant, by what he said. The- search is confined to his but object its is language, his still meaning. minimum,
“With the desire to reduce to
per-
a
plexity
uncertainty inseparable
the subject,
from
courts have established certain more or less artificial
and arbitrary canons
which certain
construction, by
are
expression
presumed to have
mean-
certain
forms of
and in
ings,
these
cases
are held
presumptions
doubtful
to be decisive. But all
these
subservient
canons are
to the
great rule
to
and are made to
not'
intent,
aid,
to override it. As in all such
care
cases,
required
that
tools
not
shall
become
and that
fetters,
real
shall
end
not
sacrificed
be
to what was intended only
as the means of
it.”
reaching
Accord: Rede’s Appeal,.
Pa.
Baker and
(1875);
Wheeler’s
Appeal,
It to is difficult see a how testator could more clearly express his intention:
(1) That his wife should Mary have a only in his residuary power estate of con estate sumption of principal both and income;* and That his un-
(2) residuary all estate which was consumed wife go his should to Mary (a) his son if Merle he to Mary (subject survived Mary’s right create a of this property trust Merle for his life), predeceased or if (b) Merle testator’s wife Mary, then surviving to Merle’s lawful heirs.
In the testator language expressed clearest his in- unconsumed residuary tent estate should go * presently powers not relevant. With other son Merle his Mary) death of his wife
(after in other heirs; words, lawful surviving Merle’s not to lawful heirs surviving or his testator’s son ap- or her testamentary or relatives or her heirs Mary leav- without Mary Merle predeceased unless pointees, did clear that testator It is equally heirs. lawful ing appoint- a fee or even general not give Mary Mary mother with- his predeceased Merle (unless ment the testa- heirs) and lawful any surviving out leaving an intent expressed for or no provision tor made Mary between relationship a debtor-creditor create Merle. Contentions
Appellants’
*7
an
As
left
estate
Moltrup
$52,132.36.
Mr.
and the increased
stock dividends
of stock splits,
result
Moltrup’s
Mr.
shares
stock,
market
some
value
had increased
estate
residuary
unconsumed
Mary’s testa
Mary
$206,658.88.
to
death of his wife
occupied
(1)
Mary
contend
appointees
mentary
in
debtor-creditor
relation
of a debtor
a
position
Moltrup’s
the debtor to Mr.
that she was
(2)
and
ship
in the sum
which
only
$45,794.37,
remaindermen
Mr.
the value of
$52,132.36,
the sum
represented
estate at the time of the award
Moltrup’s residuary
which was the value
$6,337.99,
less
her,
distribution
consumed
lifetime.
had
her
property
during
of the
she
on Powell’s
appellants
contention,
rely
To
support
A. 2d
five
391, which,
years
Appellants’ for each of contention is unsound two (1) ignores It or misconstrues the clear lan- reasons: (2) guage Powell’s and intent of Walter’s will, Hays changed supra, law which Estate and inapplicable to Walter’s will. Walter’s are death, after 1Q1\0, have died November 1, we Walter, seen, leaving Prior to Powell’s dated March 1935. will supra, decided which was Pa., Pennsylvania had that a testa- never been the law of (so-called) legal mentary gift of a estate consumption created a remainder over, relationship the life tenant and between debtor-creditor Hays Estate laid Powell’s Estate and remaindermen. artificial and or more or less down a technical “a rule, arbitrary at best canon of construction,”—it *8 appellants merely to aid in ascer- rule of construction a taining not inflexible rule it was an intent; testator’s apply not and could not to of and it did construction, 1941 such a of died before when the will a man Avho proceeds personal property, of the conversion or in the Interest In subject trust, fu estate, and which is a is not of real which property, and interest, a trustee of such to be deemed shall be ture ordinary powers remainderman, the with to the not a debtor effectually Indeed, re trustee, these were cases . . .” of a duties by Lyman 366 Pa. Act the Estates pudiated even without 164, A. 2d 633. 76
170 Pa. 164, Lyman Estate, not exist. did rule 2d 633. later Justice, Pa., supra,
In Lyman 170, (pp. 169, 171) : said Jones Justice, Chief the star in pole a is the intention of testator . . That “. of of citation au Ms no requires will construction . . . thority. Lyman’s testamentary was R. William
“What, then, in 1926 when he executed intent? As the law stood to consume had a life tenant never his will, remaindermen. Such held be a debtor a been spoken life tenant was then of as a trustee’ for ‘quasi herself and the remaindermen: Watson’s 433; 88 A. the remainderman and, was not of a a creditor life con- having right sumption: see Metz’s 185 A. 241, 242, 740. rule The of debtor-creditor which relationship, to an ex- pertained has life not ordinary tenancy, was tended to a with power un- tenancy consumption til the decision in Powell’s Estate in The testa- 1941. tor presumed be cannot, therefore, have intended to impose legal upon his liability wife, life tenant, extant which rules construction did not then impose on the character of life estate which he bequeathed. . . . . On ‘. subject interpretation of wills it meets the cardinal and controlling principle that the inten- tion of the prevail. testator must . . In present as in case, all therefore, others, question what is, was intention testator, is to be ascertained what testator understood to be the his legal meaning at the language time he used it.’ The “... testamentary intent present instance is The clear. remaindermen were to take merely what left of the testator’s residuary in the estate, form and at the value, as it existed upon Mrs. Lyman’s death. There no occasion for resort rules con- As struction. was said Mr. Justice Linn in Gordon *9 61 A. 2d 330, 849,—(. . . it 325, applied that such rales are elementary never to defeat of expressed intention a testator.’ such Manifestly, cannot be an intention ascertained ex justly post rule construction facto
To even if resort is had repeat, technical rale instead construction, ascertaining intent of the testator from he language Powell’s employed, Estate and Says Estate are not controlling reasons set forth in Lyman supra.
Res Adjudícala, Estoppel? Appellants have one additional namely, argument, legatee Walter’s his executor residuary Merle and are estopped from because after asserting Merle’s claim his father’s Mary as his executrix filed an execu- death, tor’s account to which no objection excep- made was tion and filed, which confirmed consequently urn was der a rule of Court in Beaver County.
In 1940, Beaver did not have a County separate Orphans’ Court. pursuant §47(c) Consequently, the Fiduciaries Act of and 1917,* the rales Orphans’ Court Beaver Mary’s account County, her capacity as executrix of the her will husband Walter J. filed in office of Moltrup was the clerk of the Court. as the result of this Solely filing in Beaver the account facto ipso was confirmed County, no nisi and been filed objections having thereto, was then their confirmed under Court rules without any Mary’s having audit** without notice claim * 447, (c), Ann., §47 P. L. 20 P.S. Act of June Oh. [repealed]. App. §842 ** executrix, attorney Moltrup, testified The for Mrs. as fol- “By Bay: Q. record The indicates that the account Mr. lows: Court, 3d, confirmed nisi on on June filed exceptions entry—No having was an there filed 13th been June *10 notice given remaindermen. The only to
been given any having or any party or heirs any remainderman in remainder, interest was possible interest or an that an account had publication a an advertisement as executrix of the will Moltrup filed E. by Mary been J. and in the absence of her husband Walter Moltrup, confirmed exceptions absolutely. would be included debits and credits, which account, The “Distribution in kind following: contained the E. Mary Moltrup.” balance has been made as follows: enumeration of of stock There then follows an shares au- plus of twelve different a Pierce sedan companies, cash At the time tomobile valued at and $100, $501.67. some of these stocks were Mary’s registered death, name of E. some Mary Moltrup, registered were Moltrup E. life tenant Walter J. “Mary u/w, Moltrup and with some were power sale,” registered “Mary E. under as life tenant will of Walter J. Mol- Moltrup, trup.” contend that appointees advertisement
Mary’s of the filing executrix’s absence of account, excep- pro tions thereto and the forma confirmation of the account constituted effect legal a Court-awarded distribution and Mary personally with absolutely, if same effect as notice of her claim legal had been given having possible every party remainder in- terest and as if there had been an adversary proceed- and a ing binding adjudication respect to her account, hereby foregoing the above and same is confirmed ab- solutely. your account, that it recollection this or Is schedule of thereon, appears distribution, absolutely by it was as confirmed Objection, your Holland: Honor. Mr. The Court: The Court? fact, speaks As a matter of for itself. at account time that exceptions proper procedure. no If there were filed after was the days automatically nisi, of ten end became confirmation on so noted it the record without further the Olerk and absolute of Court.” Order We this contention our deci- reject place
claim. on the that no no- ground appropriate sion actual tice of claim re- present ever to the Mary’s given mainderman until after death in 1958. Mary’s
We further note that at
the time of
filing
account
executrix of
Mary’s
her
will,
husband’s
only questions appropriately
before the
timely
Orphans’ Court
(1)
were
confirmation of the debits
and credits contained in the account and
the award
(2)
of a
Mary
consumption.
life interest with
disposition
The
the award
the unconsumed re
*11
on this
was
mainder,
clearly
unquestion
record,
a matter
for later determination
Court
ably
by the
when
life estate had
Mary’s
terminated. Certainly,
the advertisement
and the above-mentioned
record,
award to
present
with no actual notice to
Mary,
potential
remaindermen—some of whom were unknown
or unborn and all of
unrepresented—of
whom were
claim which
after
Mary’s executors made
her death
(which was 18
after her account as executrix of
years
Walter’s
could not bar
estate)
of re
interest
maindermen
had no notice of
who
claim. See
Mary’s
Emmerich
32
2d
John
Estate,
307, 311,
400;
son’s
276 Pa.
Estate,
128;
120 Atl.
291, 296,
Partridge-
Orphans’
Pennsylvania
Court
Remick,
Vol.
Practice,
295. Cf.
page
also
III,
Stotesbury
387 Pa.
591,
A. 2d 587; Ray’s
345 Pa.
2d
25 A.
Robins’s
37 Atl.
Jones’s
803;
121;
In Pa., supra, this Court testamentary appointment down a struck the life by that and held the interest tenant, remainderman and controlled be governed by must the will of the created the for life gifts testator who and the gifts The Court said pertinently (pp. remainder. : 295-296) Did he have more point . The than is, “. . a life in- involved as What terest? became and, point, not if The convenient, at Ms death? most of the estate questions appropriate, these time to raise and settle after audit of the account filed Elwood’s at the life . . . tenant’s] death; [the judicata, agree for the contention of res we “As prior opinion of the court below that the ad- with the judications go ‘did further than to determine the not validity life of [the of the trust Elwood ” they if went that far.’ tenant],
Under the above-mentioned it is clear authorities, that at the time of the confirmation of the account of Moltrup Mary executrix of E. Walter’s will, rights properly the remaindermen were not timely actually before or determinable or determined Orphans’ and therefore under the Court, facts and the record in this the doctrine of case, res ad- judicata inapplicable. estoppel party pay
Decree
each
own costs.
affirmed,
Dissenting
Opinion
Mb.
Justice
Jones:
important
appeal
on
The most
issue
is whether,
testamentary
within the four
in
corners
this will,
expressly
by implication,
*12
tent is
either
evidenced,
precludes
application
which
of an
the
established rule
testamentary
of
construction.1
fully
majority opinion
testamentary
agree
that,
if
1
with the
a
contrary
shown,
can he
the
of construction must
intent
to the
rule
yield.
Lyman Estate,
164, 168,
;
(1950)
366 Pa.
175 rule of This thus testamentary construction be may stated: where there is a of gift personalty testamentary to a person express power with life, given the life tenant to consume such followed personalty, a gift on the death un over, of the tenant, consumed portion such personalty, relationship of the life tenant to the remainderman is debtor that of to creditor to the extent value the personalty when distributed to the life tenant. See: Estate, Hays 358 Pa. A. 2d 55 763 38, (1947) Powell’s 340 ; Pa. A. 2d 17 391 404, (1941).2 3***Suchrule is one not of construction, law.3
In Gramm 420 Pa. A. 2d 218 510, 515, 516, 342 limita- we said: “In this (1966), Commonwealth, tions over after of a life gift estate were personalty early even without recognized, intervention of a ‘though it trustee, always was held that the life tenant entitled possession of the be- thing so and this carried queathed, right the power make possession his valuable, to circum- according stances.’ See also: Eichelberger v. 17 S. R.& Barnetz, 293, (1828); 294 Kinnard v. Kinnard, 108, 5 Watts 110 24 (1836); Holman’s Pa. 179 Appeal, 174, 178, (1854); Wills and Bregy, Intestate, Estates Acts pp. et 1947, seq. 5954
“By
enactment of
. .
legislation
. security was
required to be
given by
life tenant
personalty
for the
protection
the remainderman.
The case law
developed
which
considered
relationship
between
2
24, 1947,
(April
§13,
100,
The Estates Act of
P. L.
20
1947
January
1, 1948,
§301.13,
prospec-
effective
which abolished
P.S.
theory
tively
a trust
relation
substituted
the debtor-creditor
inapplicable
operation
in the case
bar.
of law
218,
(1899) ; Lyman Estate,
Tyson’s
the life gift period with- given a over, limited with was be or creation of a trust, the intervention out the a life tenant became the creditor; debtor and that of originally in amount to the remainderman debtor be- tenant and remainderman the life received for the tenant or his estate of the life came a creditor Up personalty until 1931 when received. of the value 703), (Strawbridge’s deci- & C. 14 Pa. D. de- where the courts were all involved situations sions relationship termining the life tenant and between security former had entered or where the remainderman security expressly entry of either waived where provisions by agreement of the will or of the Strawbridge’s parties. supra, However, confronted a court was situation where where the tenant had neither entered nor been excused the life entering security, Judge from the late Gest ruled that rights of the life tenant the remainderman were security was entered or the same whether not. See Superior Pa. Gillett’s Ct. also: 318-321. “Finally, Powell’s 404, 409-412, reaffirming 2d 17 A. the existence Court, relationship a debtor-creditor between the life tenant personalty, (a) and remainderman held the life responsible only tenant was for the value the estate of distribution and not for the date increase of (b) though fund the value of the even thereafter, a life posts security, no tenant the life tenant remains a to and not a trustee for the debtor remainderman and requiring (c) legislation personalty post security apply did not to a life tenant to whom consumption given principal.” had been inquiry of our should The thrust be within whether, testamentary of this the four corners will, intent, implied, express be can demonstrated that the debtor- relationship applied interpreta- not be creditor *14 be tion of this If such intent can then the will. shown, rule of construction yield; must the rule otherwise, construction controls. I am of from an opinion, examination of in- that such will, testamentary tent implication. is not either or expressly present,
In to ascertain the intent of a seeking testator we examine its its scheme of distribu- will, language, tion and the attendant Houston Estate, circumstances: in- 201 A. 2d The (1964). 579, 586, 592, 595, tent we seek is the individual intent” “actual, personal, and not “a presumptive mere conventional intent in- ferred from the phrase use a set or a familiar form of words”: Tyson’s Estate, p. 225. The supra, majority opinion that “a intent correctly says testator’s is in polestar a state- will”; such interpreting however, ment carries no “To that magic. say the intention pole the testator is the merely star is construction, to formulate the trouble without a for it. giving remedy The intention to be sought is in primarily the words, in star pole but sky, sometimes the star pole in is so obscured the clouds of words that takes it.” skillful astronomer see Gest, Drawing Wills the Settlement Estates p. 5. Pennsylvania, In seeking presence discover the or absence of such we must be zealous to avoid intent, substituting our own view what the testator should have intended for that which will if it as to reveals, does, testator’s actual intent. opinion
The concludes that majority this will does part an intent on the of the reveal testator which pre- application cludes the established rule of testamen- intent tary construction, i.e., testamentary that should not theory In apply. debtor-creditor my view, upon which the premises the stated majority opinion conclusion lack basis in its fact predicates and in our case law.
First,
majority opinion states: “In the clearest
testator
language
expressed his intent
this unc
onsumed4 residuary
(after
estate should go
the death
of his wife
Mary)
his son Merle or Merle’s surviving
lawful heirs
remaindermen];
other
[the
words,
the testator’s son or his surviving lawful heirs and not
to Mary
or her heirs or
[testator’s
relatives
wife]
her
appointees.
testamentary
. . .” What
the majority
says,
effect,
since
that,
testator clearly provided
that the
over
gift
be to his son and the son’s legal heirs,
*15
i.e. blood
6then testator
relatives,5
must have intended
that
the debtor-creditor
relationship should not apply.
The majority opinion
errs,
my
because the in
view,
stant factual posture presents a classic posture for ap
plication of the debtor-creditor
rule.
Moreover,
majority further
falls into error
in equating “blood
relatives” with “legal
Leopold
heirs”:
Estate, 356 Pa.
543,
52 A.
546,
2d 458 (1947). This
I
premise,
sub
mit,
is a weak reed upon which to rest a
finding
contrary intent.
4 The use of the word “unconsumed” or words of similar
im-
port
contrary
Appeal,
reveals no
(1845)
intent: Straub’s
;
Second, intent, “It did not opinion states is clear testator equally power appoint a fee or even a give Mary general ment. . .”. As criteria of a contrary intent, premise is untenable. Had given testator obviously his wife a or a then general power fee appointment, clearly apply. debtor-creditor would not theory This rule of never a fee or applies construction where general power appointment given only has been but where the taker with given personalty first life, power without of consumption.6 as indicia of a
Lastly, contrary majority intent, opinion points to for or provision the absence the specific of an intent debtor- expression create a majority creditor relationship. Assuming arguendo, opinion is correct in its statement that until the deci- sion es- Powell’s of a life Estate_, gift supra, tate not to consume was personalty considered to create a debtor-creditor relationship— a statement I with which completely disagree—then, since the instant testator did not include in his will a provision for the establishment of the debtor-creditor *16 the majority relationship, concludes testator did not intend that relationship such be established. Reliance on premise this reveals of the rule misunderstanding of construction. Our research does not reveal a single instance in our case law where the debtor-creditor re- lationship because of recognized provision was therefor in testamentary the instrument; were otherwise, would be no for the necessity application there of the rule of construction. real to the of thinking
The
the
key
majority opinion
was made in
is that when distribution
1942 to the life
6
Merkel,
Appeal
(1885) ;
Appeal,
tenant tenant value of such the life personalty as the when died The is that majority thinking was $173,658.88. produces the remainderman this entire amount give intent of the testator supposed result which the opinion dictates. hold the life majority The would tenant’s not for value of responsible only estate life when distribution was made personalty but in plus also that value the increase up value time of Such her death. a result could not be reached under the rule of possibly testamentary construction; to avoid such rule the majority this Court finds what it considers a testamentary intent but in supposed what is a or invented reality intent. To the majority opinion me finds intent none where exists fails to completely demonstrate the source or sources in the upon will which a finding such intent can be rationally bottomed. Unfortunately, my view, the decision of the majority is a ex striking ample judicial interference order to reach a re sult which it considers desirable. if opinion
Even the majority correct its statement that a testamentary gift life estate in personalty with a given power of consumption fol- aby lowed limitation over portion unconsumed did not give rise a debtor-creditor relationship until enunciation such rule this Court in 1941 in Powell’s fact Estate, supra, remains that this Court on then, since least two occasions, has recognized rule applicability of testamentary construc- tion to “the tenant with power of consumption” situation. Hays See: A. 38, 55 2d 763 and Lyman (1947) 164, 76 2d 633 We have held (1950). always that when a judicial *17 7 Subtracting personalty the value of consumed the life ten- personalty uneonsumed $45,794.37. ant, value of the is the
181
to
presumed
the
not
be
rendered
law is
decision
after
the
before as
to have been
same
but
changed by
221
etc.,
Hood v. Penna. Society,
decision. See:
such
Up Act the law 1947, supra, until the Estates power that a life tenant without con- was clear debtor to the remainderman re- sumption was a for remainderman sponsible only to the value time he received it. When ascertained estate of a life tenant situation with the considering a should more consumption why power stringent testator adopted? gives When a personalty rule be upon life and then confers person the personalty, certainly consume responsibility supra, Lyman life tenant of relieved Lyman ground the will of value on indicated for losses contrary intent. *18 given the life almost has tenant absolute testator disposal personalty. the of the Powell, dominion over relationship applying in the to a “life debtor-creditor power actually re- tenant with to consume” situation, right stricted in the the life tenant that Powell held responsible life for the tenant maintenance value personalty though of the life even under the will the right personalty; by tenant had all consume making responsible the life tenant for maintenance the distributed power the court value, withdrew from the right
to consume the to consume such amount of personalty might reduce that It value. does not logical power seem to hold a life with to con- imposed sume to the same restrictions on a life tenant power Particularly without to consume. is this so when majority in the case at bar the of this Court now de- right nies to this life tenant’s estate the to the increase personalty in the value of the in whereas our case law power always a life tenant without consume has right been held to have the to such in increases value. beyond question opinion majority It is clear re Lyman solely supra, on lies which avoided the Hays by finding supposed of Powell and rule intent contrary. my Lyman the testator to the In view, Lyman, by finding supposed is incorrect.9 what it contrary only ignored rulings be a not intent, in Hays Powell and but also those in Letterle, Kirk patrick, Strawbridge. Gillett and
Generally, courts will not interfere with the first personalty taker’s control unless the remainder- dissenting opinion See: of the late Mr. Justice Stearne Lyman. agree I with statement of the note writer in 99 U. of “Logically, Pa. Li. Rev. 876: there is no distinction between [Lyman1] language language of the will and the of the wills Hays'] involving with estates [Powell to consume that “no mediaeval the footnote . . .” and scholastic differ could expressions used.” between the entiate out a strong man makes case interference: requiring Gramm Estate, p. 518 and authorities therein supra, in Tyson’s cited. Estate, supra, as we said However, 227: “But pp. a transfer the life [by tenant] intent not to consume but to preserve others herself, after her death, change the beneficiaries after her from those chosen her husband to others of her own selection would be a fraud on the testator and his *19 will. . . .” Under the terms of the instant will the power of of consumption principal and income the life tenant was not to certainly be without restriction: her consumption was intended to be in good faith and her diversion of the to personalty others was not con- templated.
If we examine this will it is crystal clear that, upon the life if portion tenant’s of the death, personalty remained unconsumed, such under the personalty, scheme of the was to to will, go the remainderman and his legal heirs. What the life tenant to do attempted was to divert such personalty persons other than the remainderman and his heirs. She was thus thwart the clear intent of ing this testator10 and upon this ground the instant result be might justified. The do not majority even consider this ground.
I believe that the life tenant was a debtor to the remainderman to the extent of the value of the per- to her. I distributed further sonalty believe in- that, of as the such personalty sofar value is concerned, any tenant the life divert attempt by personalty to others cannot than the remainderman be countenanced. How- of as to the increase value such I ever, personalty, our case law mandates that believe such increase be- of life to the estate the tenant. longs supra, Qramm which was decided under 10 Of. the Es 1947, supra. of Act tates Powell Court majority The now overrules the Hays under this will guise finding an intent of which the basis the testamentary intent, opinion fails to reveal. hear much majority We doctrine stare no area doctrine decisis; is such important more than in the construction wills which involve valuable If rights. property majority Powell this Court believe that and Hays incorrect, are Hays Powell and should be held no courageously longer opinion authoritative. What how- majority does, tois avoid Powell ever, following Hays by use of a fiction of supposed testamentary intent. To do so renders meaningless the doctrine stare decisis.
I could reach same result which the majority by finding arrives the life tenant was attempting persons divert other than the son and his heirs the value of the personalty when distributed to her. I believe that However, enhancement in value of to the personalty belongs estate and not to estate of the remainderman.
The second and last issue raised by the estate of the life tenant is whether the distribution to subject I challenge years later. permit would such on but challenge grounds other than the majority such allows challenge. My study record indi- that cates the remainderman did not receive notice of proposed distribution on 1942; I ground permit would an attack on the distribution.
I reverse the decree of would the court below. Eagen joins Mr. Justice this dissenting opinion.