128 A. 100 | Pa. | 1925
Argued January 15, 1925. The court below confirmed the report of an auditor which awarded the entire estate of a deceased unmarried woman to her only child, an illegitimate son, born after the date of his mother's will and not provided for therein: this appeal is by the residuary legatee, to whom testatrix left the bulk of her property, in the language of *399 the will, "without any condition, restriction or limitation whatsoever."
The will was executed June 12, 1920; the son was born August 21, 1920; and the testatrix died August 25, 1920. The child, named Alexander, still lives, and his guardian claims under sec. 21 of the Wills Act of June 7, 1917, P. L. 403, 410, asserting an intestacy as to his ward, owing to the fact that he is not provided for in the will of his mother, and contending that, since the intestate law makes this boy the sole heir of decedent, he is entitled to her whole estate.
The section in question provides: "When any person, male or female, shall make a last will and testament, and afterward . . . . . . shall have a child or children not provided for insuch will, and shall die, leaving . . . . . . such child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the surviving . . . . . . child or children born after the making of the will, shall be deemed and construed to die intestate; and such child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if such person had actually died without any will."
Appellant, — despite the above-quoted language of the absolute and unrestricted devise to him, and admitting the absence of any reference to appellee's ward, or of provisions for his benefit, in the will, — claimed that a secret parol trust existed, through an understanding between him, the residuary legatee, and decedent, by which a substantial part of the estate was to be paid to the child, and that the circumstances of the case made this trust tantamount to an express provision for the latter within the meaning of section 21 of the Wills Act; and therefore no intestacy existed as to him. Appellant offered to prove this alleged trust by conversations between himself and decedent; by her declarations to other persons named by him as beneficiaries under the *400 alleged trust; and by an unsigned memorandum in writing entitled "Distribution of Estate," which was found with the will, and which contained the initials of the residuary legatee, those of other personal friends of decedent, and of her unborn child (according to the name which the testimony shows she had intended it to bear), with amounts opposite the respective initials. To bring this memorandum into the case, appellant testified that, in their conversations, decedent had stated she would give him written instructions for the distribution of her estate; but that, as a matter of fact, she never gave or sent any such instructions to him and he did not receive the memorandum produced before the auditor until after the death of decedent.
Appellant further claimed in the court below, and contends here, that, because of illegitimacy, the boy Alexander is not within the purview of section 21 of the Wills Act or entitled to its protection. In support of this contention, which we shall dispose of first, he takes the position that, "in the absence of some qualifying expression," the word "child" in legislative enactments, as in legal parlance, generally means "only and exclusively a legitimate child" (citing Overseers v. Overseers,
Appellant's attempt to place an illegitimate child in the same category with an adopted child so far as the application of section 21 of the Wills Act is concerned, and thereby to exclude the former from its protection (Boyd's Est.,
As to appellant's other major contention, the court below was right in deciding that the testamentary provision for an after-born child required by section 21 of the Wills Act, whether by trust or direct provision, must appear in the will itself to prevent such a child from *403 claiming an intestacy. The statute requires this construction, for it says, "When any person . . . . . . shall make a last will . . . . . . and afterwards shall . . . . . . have a child . . . . . . not provided for in such will . . . . . . every such person, so far as shall regard the surviving . . . . . . child . . . . . . born after the making of the will, shall be deemed and construed to die intestate."
We base the above conclusion as to the meaning of section 21 of the Wills Act on the plain words of the statute itself, after reading and considering the many cases cited by counsel on both sides of this interesting controversy; and we think it would serve no useful purpose to review those authorities. It is sufficient to say that, while some of the cases employ language which counsel for appellant have excerpted in support of their contentions, and others use language on which counsel for appellee rely, none of them, in our opinion, determines anything contrary to the decision reached in the present case.
Appellant's briefs contain abundant authority that, under some circumstances, one taking an absolute devise or bequest may, on evidence aliunde the will itself, be held trustee for another. The question here, however, is not whether a trust for the child could be proved by evidence outside the will; it is whether Alexander was provided for in the will; and, as to this, there can be no question but that he was not so provided for. On the contrary, the testamentary provision on which appellant relies, whereby the devise is made to him, excludes by its terms, as shown in the first paragraph of this opinion, all other persons, including Alexander, and he is not mentioned in any other part of the will.
"Every part of a will must be in writing" and the trust in this case, if it could exist, would owe its validity, "not to the [written] will," but to facts depending for their proof on oral evidence dehors that instrument: see the opinion of GIBSON, C. J., in Hoge v. Hoge, 1 Watts 163, 215. Without regard to whether this evidence *404 was properly admissible, or whether, if competent, it was sufficient to establish the alleged trust (propositions argued in the briefs of counsel), such trust, — even if accepted as proved for the purposes of determining this case, and as showing a substantial provision for testatrix's after-born child, — not being incorporated in the will itself, fails to meet the requirements of the law of Pennsylvania, and this results in an intestacy so far as the rights of Alexander to his mother's estate is concerned. The court below properly so determined.
The decree is affirmed, costs to be paid out of the estate.