25 A.2d 600 | Pa. Super. Ct. | 1941
Argued October 16, 1941. This is an appeal from a decree of the Orphans' Court of Philadelphia County awarding a balance in the administrator's account of John Rzedzianowski, also known as Jan Rzedzianowski, deceased, to his next of kin.
The decedent died on November 1, 1937, unmarried and without issue, domiciled in Philadelphia, and letters of administration on his estate were granted by the Register of Wills of Philadelphia County on May *363 11, 1939. An account of the administrators was listed for audit in January, 1940, and at that time a continuance was granted, pending probate of a lost will and codicil of decedent. On January 29, 1941, the decedent's holographic last will and codicil in the Polish language were duly admitted to probate by the Register of Wills of Philadelphia County, together with a duly certified English translation thereof, and counsel representing all parties in interest entered into a stipulation providing that the letters of administration theretofore granted by the Register of Wills of Philadelphia County be revoked and that letters of administration c.t.a. be granted to the same persons who theretofore had been the administrators; that the account filed by the administrators be placed on the list for audit by the Orphans' Court of Philadelphia County; that at the audit of the said account, all parties in interest would join in a request to the orphans' court not to award the balance of the account to the administrators c.t.a., for further accounting, but to distribute the same to the beneficiary or beneficiaries entitled thereto under the testator's will, or otherwise, according to the law of Pennsylvania.
The provisions of the foregoing stipulation were carried out, original letters of administration revoked, and letters of administration c.t.a. were granted as stipulated. The account of the administrators was called up for audit by the orphans' court on February 6, 1941, before LADNER, J.
The moneys accounted for in said account consisted exclusively of money which the decedent had on deposit in the Philadelphia Savings Fund Society and a small deposit in the United States Postal Savings, and the accounts had evidently been opened by the decedent some time after the date of his last will and codicil.
After deducting costs of administration and the amount due a creditor of the decedent, the net balance for distribution was $2267.66. *364
This fund was claimed at the audit by the Polish Consul, representing the decedent's next of kin, a sister, nephews and nieces, all of whom were residents of Poland. Said fund was also claimed by the appellant, Anna Borkowska Paczosa, on the theory that there was no intestacy and that she was the sole legatee under the decedent's will and codicil.
The auditing judge, on April 4, 1941, filed an adjudication sustaining the claims of the Polish Consulate, representing the decedent's next of kin, and held that the appellant was not entitled to the said fund, on the ground that under the language of the testator's will and codicil, the same had not been bequeathed to her and that, therefore, there was an intestacy with respect to this portion of the decedent's estate. Exceptions were duly filed on behalf of the said Anna Borkowska Paczosa, in the lower court which were duly argued and dismissed by the court in banc. From this decision, the said Anna Paczosa prosecuted the present appeal.
The pertinent provisions of the decedent's will and codicil are as follows: In the preamble of the will, the testator sets forth that he is about to leave Poland for America and that considering the uncertainty of life and the perils of the journey, he has decided to dispose of his "modest means," according to his own will. Testator then sets forth that his brothers and sisters showed him a great deal of hostility and unfriendliness and that he became involved with them in expensive litigation and that he "absolutely denies his brothers and sisters any right or any claim whatsoever on their part to the inheritance of his property." Testator then sets forth that he is a bachelor and that he has no descendants and that therefore he leaves "all my modest property, consisting of fields and three lots" (which he describes) to his friend, colleague, companion of his youth and his then fiancee (naming the appellant), and then continues, "and apart from that" he leaves *365 to the said appellant certain enumerated shares of bank stock. There were no other dispositive words in the will. However, testator added a codicil to his will, which has likewise been duly admitted to probate. This codicil consisted solely of a request to the competent court authorities to deliver his "modest property", without any restricting or qualifying words whatsoever, to the interested party (naming the appellant) without difficulties and unnecessary expenses to her. The will bears date of May 30, 1925. The codicil is undated.
It appears to be conceded that the account in the Philadelphia Savings Fund Society, which embraces substantially the entire fund in controversy, had been opened by the decedent some time after the date of his last will and codicil.
Under Section 9 of the Wills Act of June 7, 1917, P.L. 403 (20 Pa.C.S.A. § 221) it is provided: "Every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." With reference to bequests of personalty the general rule of the common law, in the absence of any statutory enactment, was that the will "was not referable to the state of the property, at the time of the making of the will, but was construed to take effect from the date of the testator's death, unless there were expressions in the will showing it was intended to describe the property with reference to the former and not to the latter date": Fidelity Co's Appeal,
The underlying principle by which we are governed in seeking a solution of the question involved, is to ascertain the intention of the testator as expressed in his will. *366
At the outset we should bear in mind that the testator died unmarried and without issue. So far as the will itself discloses the only person designated by name, as the object of testator's bounty, is the appellant, Anna Borkowska Paczosa. In addition he "absolutely denies his brothers and sisters any right or any claim whatsoever on their part to the inheritance of his property."
Quoting from Leech's Estate,
The court below held that the words "all my modest property" in the will are restricted by a description of particular property and that the codicil is but a reaffirmation of the will, and that the repetition in the codicil of the phrase "my modest property" does not govern the distribution of the estate, and that as to the personalty here being accounted for, the testator dies *367
intestate, and that "distribution must be determined by an analysis of the pertinent language of the will. A codicil is only permitted to change the will to the extent that it is inconsistent with it: Schattenberg's Estate,
Standing alone the words "my modest property" would undoubtedly carry the fund in controversy. Quoting from Rossetter v. Simmonsand Wife, 6 S. R. 452, 456, our Supreme Court said: "Property signifies every species of property; it is nomen generalissimum, and comprehends all his earthly possessions; it is equivalent to a disposition of `all I am worth in the world', `whatever else I have in the world', `all my substance', which have been construed not only to pass land, but to pass the fee simple; it is stronger than worldly effects, which will carry real estate, if such appears from the whole will to be the intention of the testator." The word "property" naturally means personal as well as real property: Moore's Estate,
So far as the form of the codicil in the instant case is concerned, the authorities are clear that the following language of this codicil, constitutes a clear, testamentary disposition of all of the testator's property to the appellant: "Additional note: This document acquires legal power on the date of my decease and the court authorities competent in this section of the law are hereby requested kindly to deliver my modest property to the interested party, Anna Borkowska, without difficulties and unnecessary expenses to her. (Sgd) Jan Rzedzianowski."
In Hand's Estate,
In Wolfe's Estate,
This direction to the competent court authorities to deliver "my modest property to the interested party, Anna Borkowska, without difficulties and unnecessary expenses to her", is the exact equivalent of a devise or bequest of the testator's property to her.
In Fosters Estate, supra, the Supreme Court repudiated the thought that the language of the codicil must be so construed as to make as little change in the body of the will as may be possible, and instead, ruled that where the language of the codicil is clear and its provisions are in conflict with the language of the original will, the provisions of the codicil must prevail.
The effect of the decision of the court below is to make the codicil mere surplusage. In Moyer's Est.,
It is a fundamental and well established rule of construction of doubtful words contained in a will that *369
a partial intestacy is not to be presumed if the words used will carry the whole estate, and a construction is to be given a will which will avoid a partial intestacy unless the contrary is unavoidable. The countervailing presumption that an heir is never to be disinherited except by plain words or necessary implication has no application in the instant case, because the testator, in the preamble of his will, expressly states his intent to disinherit his brothers and sisters. See, French's Estate,
In Reimer's Estate,
In Nyce's Est., 5 W. S. 254, 259, the Supreme Court said: "It is impossible to consider this will as a whole, as we are bound to do, without being forced to the conclusion that, by it, the testator intended to dispose of all his estate, real and personal. By the introductory clause he declares, `As for what wordly estate wherewith it hath pleased God to bless me with in this life, I give and dispose of the same as followeth.' This, although not sufficient, of itself, to carry an estate or legacy clearly omitted, is strong evidence of a general intent not to die intestate as to any portion of the party's estate." *370
There is nothing in the instant case which makes it impossible to construe the words "my modest property" in the codicil, as referring to all of the testator's property and so avoiding a partial intestacy. The enumeration in the will of particular items after the gift in general terms "of all my property" by the use of the words "consisting of, etc." did not abridge or cut down the effect of the general words.
In Graham v. Knowles,
In Williams v. Brice,
The court below relied on McGlathery's Estate,
Howe's Appeal,
To adopt the construction of the court below would be to award the fund in controversy to the very persons whom the testator in the strongest terms sought to disinherit. That construction of the will and codicil would be contrary to the clearly expressed intention of the testator.
It is our opinion that there was no intestacy as to any part of testator's property, real or personal. Hence there is nothing for the testator's brothers or sisters, or for any other of his next of kin who were not expressly disinherited, to take.
The question whether the testator was justified in seeking to disinherit his blood next of kin, and in giving his property to an utter stranger to his blood, is not a proper question for the consideration of the court. Our Supreme Court, in Hogg's Est.,
Judgment reversed and record remitted for further proceedings in conformity with this opinion. Costs to be paid out of the estate.