170 Pa. Super. 405 | Pa. Super. Ct. | 1952
Opinion by
This is an appeal from the order of the Orphans’ Court of Crawford County dismissing exceptions to an auditor’s report and confirming finally the report and schedule of distribution annexed thereto.
The facts are undisputed. Evans W. Shippen died testate on March 20, 1910. The eleventh paragraph of his will was a gift of the residue of his estate to his daughter, Katharine S. Tarr, one-third of which was to be held in trust for his son, Henry H. Shippen, as provided in the fourth paragraph of the will. The last mentioned paragraph was a devise and bequest of two pieces of real , estate and a sum of money to the same daughter to. be held in trust for Henry H. Shippen for life, and in the following terms,,provided ,for, the.:.dis:
The life tenant died on September 17, 1949, unmarried and without issue. The descendants of Evans W. Shippen then living included two nieces, a nephew, and thirty-three grandnieces and grandnephews. The schedule of distribution, confirmed by the court below, provided that the balance in the hands of the substituted trustee for Henry H. Shippen be equally divided between the two nieces and the nephew to the exclusion of all other descendants of the testator more rémote in degree. A grandnephew appeals.
Whether the distribution made is in accordance with the terms of the testamentary trust depends on the meaning to be given the wording “said trust estate shall descend to my nearest of Kin then living, according to the laws of the State of Pennsylvania,” contained in the fourth paragraph of the will.
As used in wills, the word “descend” is often re? garded as a general expression equivalent to the words “go to” or “belong to,” and as indicating a passing of title by the force of the will rather than of the statute. Klingman v. Gilbert, 90 Kan. 545, 135 P. 682, 684; Wise v. Wise, 109 Ind. App. 207, 34 N. E. 2d 143, 144; Words and Phrases, vol. 12. p. 213 et seq. We. so regard it here. .
The expression “nearest [of] kin” is generally regarded as tantamount to “next of kin.” 57 Am. Jur., Wills, §1398. With respect to the interpretation of “next of kin” there is diversity of opinion: "Soüxé courts
However, appellant contends, relying on Garrett’s Estate, 249 Pa. 249, 94 A. 927, that the testator intended by the phrase in question .to designate as recipients of the remainder of the trust estate on the death of the life beneficiary without issue, the class of persons who would be entitled to a share under the intestate lawu of Pennsylvania. Under those laws the children of the deceased nieces and nephews of the testator would share the remainder of the trust estate with his nieces and nephews living at the time the life interest terminated. The children, grandnieces and grandnephews,
However, there is a notable difference between the phrase construed in Garrett’s Estate, supra, and the one involved in the case at bar; namely, the absence of the word “intestate” in the latter phrase and its presence in the former. Certainly, if the words “according to the laws of the State of Pennsylvania” mean “according to the [intestate] laws of the State of Pennsylvania,” then Garrett’s Estate would be persuasive, if not controlling here, in favor of the contention advanced by appellant. But, without a direction in the will so to do, we cannot apply the provisions of the Intestate Act. Nor do we have authority, where the testator has not so directed, to interpose the word “intestate” and thereby alter language of the testator’s deliberate choice. On the contrary, we must take the will as written. Dougherty’s Estate, 117 Pa. Superior
After full consideration of the briefs of argument and a careful reading of the will as a whole we are of the firm opinion that the phrase in issue must be given its literal and plain meaning. Hence, we hold, there being no manifestation that the testator’s intention was otherwise, that the meaning of “nearest of kin” must be limited to the technical meaning ascribed to “next of kin” at all times pertinent herein by the laws of Pennsylvania, including its decisional law, viz., the nearest of the testator’s blood relations in equal degree of consanguinity to the exclusion of those more remote in degree. Everitt’s Estate (No. 1), supra. Cf. Altdorfer’s Estate, 225 Pa. 136, 73 A. 1068; Stoler’s Estate, 293 Pa. 433, 143 A. 121. See also Hunter’s Orphans’ Court Commonplace Book, vol. II, p. 782.
Order affirmed at appellant’s costs.
The Act provides that in' the absence of a contrary intent appearing in the will “next of kin” shall mean those persons wlio would take under the intestate laws. Act of 1947, April 24,. P. L. 89, §14(4), 20 PS §180.14. But §22 of this Act, 20 PS §180.22, provides : “This act shall take effect on the first day of January, one thousand nine hundred forty-eight, and' shall apply only to the wills of all persons dying on or after that day. As to the wills of persons dying • before that day, the existing law shall remain in full .force and effect.” .