Scott's Estate, 163 Pa. 165

Scott's Estate

163 Pa. 165 | Pa. | 1894

Opinion by

Mr. Justice Fell,

The contest in this case relates to the distribution of the residuary estate of Jennie E. Scott. The third clause of her will, under which the question arises, is: “ Should my beloved niece Miss Jessie A. Barnes die without issue, then in that case I will and devise the remainder of my estate after her decease without issue as aforesaid, to be divided among my nephews and nieces, to wit: the legal heirs of Mrs. Lilly A. Gwin, the heirs of my deceased brother James A. Scott, and the lawful heirs of my beloved brother John W. Scott, and Anna R. Stuckey, each to take share and share alike.”

Jessie A. Barnes died without issue, and the question before the auditor was whether distribution should be made per capita or per stirpes.

The testatrix left surviving her a brother, John W. Scott, and two sisters, Mrs. Gwin and Mrs. Hutchinson. Her brother James A. Scott and her sister Mrs. Barnes died before her. All of these brothers and sisters had children ; and those of John W. Scott, Mrs. Gwin and James A. Scott, and one of the two children of Mrs. Barnes, Anna R. Stuckey, are beneficiaries under the third clause of the will, while the children of Mrs. Hutchinson and Rush Barnes, a brother of Anna R. Stuckey, are not mentioned.

*169The learned auditor, for reasons stated in his very full and elaborate report, concluded that distribution should be made per stirpes. He awarded it accordingly, and his report was confirmed by the orphans’ court.

"We are of opinion from a careful examination of the case that this judgment is not correct. The scheme of the testatrix in disposing of her estate was to give to Anna R. Stuckey a bequest of $1,000, and the residue for life to Jessie A. Barnes, with remainder to her children, and, upon failure of such issue, to fourteen of her twenty nephews and nieces, to the exclusion of the other six.

Whether we apply to the residuary clause of the will the technical rules of construction, or give to it the plain meaning which its words import and its grammatical structure requires, the result is the same. When there is a testamentary gift to one'person, and to the children of another person who stand in the same relation to the testator, the donees, take per capita. This rule under the English authorities yields to slight indications of a contrary intent; and in Pennsylvania the contrary intent is inferred where under the intestate laws, which are always resorted to in cases of doubtful interpretation, the distribution would be made per stirpes, as in the case of a gift to a son or brother of the testator and to the children or heirs of a deceased son or brother. Where, however, the gift is to persons or classes of persons who stand in the same relation to the testator, the analogy furnished by the intestate laws indicates a division per capita, for in such cases, under sec. 14 of the act of April 8, 1883, and sec. 1 of the act of June 30, 1885, persons so standing, “ if there he more than one, shall take in equal shares.” ■

The benefit here was evidently intended for the legatees individually, as nephews and nieces, and not as representing their parents, who in two instances are still living and were entirely passed over. The nephews and nieces are treated as if their parents were dead; and in that case, if there were no will, the estate would go per capita under the intestate laws, to the beneficiaries and others occupying the same position.

The intestate laws, which would have required a distribution per stirpes, are passed over in order to exclude brothers *170and sisters and give the estate directly to nephews and nieces. That having been done, distribution under the law would then' be per capita; and the presumption is in favor of such an intention on the part of the testator in the absence of evidence in the will of a purpose to further supersede the statute. The will seems clearly and affirmatively to show that the distribution was to be in equal shares.

Leaving out the parenthetical enumeration of the persons intended to be embraced in the gift, the language is as follows : “ I will and devise the remainder of my estate after her decease without issue as aforesaid to be divided among my nephews and nieces .... each to take share and share alike.” Nothing could be more explicit than this, and the meaning is not changed by the parenthetical clause. Its manifest object was to limit the generality of the preceding words, and to define the persons who were to take. She had before written “ my nephews and nieces,” which included all her nephews and nieces. This was not her purpose, and she proceeded to designate those who were to take in order to exclude the others-The design was not to classif}’, but to discriminate and ex elude.

The word heirs is not used technically, but in the sense of children or descendants, as the brothers and sisters would be collateral heirs of each other in case of death without issue, and until death there could be no heirs either linéal or collateral.

The- nephews and nieces intended as beneficiaries having thus been ascertained, there is no uncertainty how they are to take. The division is to be such that “ each ” is “ to take share and share alike.” Each refers to the persons described in the first part of the paragraph, the nephews and nieces who are identified by the videlicet clause. The expression “share and share alike ” standing- alone might refer to a division among classes as well as among individuals ; but this cannot be said of “ each to take,” which, unless applied to individuals, as the grammatical structure of the paragraph requires, must be regarded as redundant and meaningless. This would violate the elementary rule of construction which forbids the rejection of a word if a meaning can be found for it. . “ Where a testator uses an-*171additional word or phrase he is presumed to have an additional meaning.”

The decree is reversed at the cost of the appellee and it is ordered that distribution be awarded in accordance with this opinion.