12 Pa. Super. 551 | Pa. Super. Ct. | 1900
Opinion by
The defendants rest tbeir case mainly on the proposition that where there is a devise for life with remainder over to testator’s children “ then living ” or “ then surviving,” the words “ then living ” or “ then surviving ” shall be taken to refer to the period of the testator’s death. If by this is meant that there is an established rule of construction or of law which gives to the words a fixed meaning, a rule which may be invoked to override the actual intent of the testator, or which precludes inquiry into the intent, the proposition is not sound in principle, nor is it sustained, at least not to the full extent contended for, by the authorities. In the construction of wills the great general and controling rule is that the intent, of the testator shall prevail, by which “ is meant his actual, personal, individual intent, not a mere presumptive conventional intent inferred from the use of a set phrase or a familiar form of words: ” Tyson’s Estate, 191 Pa. 218. “ With the desire to reduce to a minimum the perplexity and uncertainty inseparable from the subject, courts have established certain more or less artificial and arbitrary canons of construction, by which certain forms of expression are presumed to have certain meanings, and in doubtful cases these presumptions are held to be decisive. But all these canons are subservient to the great rule as to the intent, and are made to aid, not to override it. As in all such cases, care is required that tools shall not become fetters, and that the real end shall not be sacrificed to what was intended only as the means of reaching it:” Mitchell, J., in Woelper’s Appeal, 126 Pa. 562. In doubtful cases the courts favor that construction which, consistently with the words of the instrument, will give an absolute rather than a defeasible estate, a vested rather than a contingent one, and which will result in a -disposition in conformity to the general rules of inheritance, rather than one which will disinherit an heir-at-law. There are good reasons for so doing, amongst which is the strong probability that they thereby carry out the real intent of the testator. But an examination of the cases will show that they go no further than to establish the general rule that the phrase under consideration and similar phrases will be construed to refer to the death of the testator, unless it clearly appears that he meant it to refer to. a different period. When the intention has been apparent,
Buzby’s Appeal, 61 Pa. 111 fairly illustrates the doctrine that the rule of construction will not override the intent but will control where an opposite intent does not clearly appear. Testator devised to trustee for use of his son William for life and from and immediately after his decease, then in trust for the children of the said William that shall “ then be living ” and issues of such of them as shall “then be deceased,” and for want of such child or children or lawful issue, “ then in trust for the use of my right heirs forever.” It was held that the remainder in fee limited to the children of William living at his decease was contingent or executory, while the limitation over by the words, “ then in trust for my right heirs forever ” was construed to refer to the date of the death of the testator. “ Obviously the word then is not used in this clause as an adverb of time, but as a conjunction, signifying in that case, in that event or contingency. If this be its meaning, there is nothing to prevent the general rule from applying, and the words must be construed as referring to the heirs of the testator at the time of his death.” The general rule here referred to is, that a limitation in remainder to heirs will be construed to mean those who
Keeping these general principles in mind, what is the proper construction of this will? The clause that has given rise to the difficulty reads as follows: “ First, I give, devise and bequeath to my beloved wife, Christianna Schmidt, all my estate, real, personal and mixed, for and during her natural life, or so .long as she remains my widow unmarried, and after her death or remarriage I give, devise and bequeath the same unto all my children, then living, under the following conditions.” The word “ then ” was used as an adverb of time, and not as a conjunction signifying, merely in that case, in that event or contingency. Tins is as obvious as that it was used in the latter sense in the limitation over to the heirs of the testator construed in Buzby’s Appeal, supra. It is equally as obvious that it refers to the period of the widow’s death or remarriage. That was the period or the event of which the testator was speaking, and he had spoken of no other. There is no other event to which it can refer unless we add words to the will. Nor was this a mere postponement of the time of enjoyment. “ It was a selection of individuals from a class to be donees of a right; a description of persons not a regulation of the interest given: ” McBride v. Smyth, 54 Pa. 245. In such cases the rule applies that where the devise or bequest is to such person or persons as-shall live to a certain age, or be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the person or persons who are to take the devise or bequest is necessarily contingent: Smith on Executory Interests, 281; Fairfax’s Appeal, 103 Pa. 166; Craige’s Appeal, 126 Pa. 223; Coggins’s Appeal, 124 Pa. 10, 34; Martin’s Estate, 185 Pa. 51; Mergenthaler’s Appeal, 15 W. N. C. 441. The arguments against this construction are so completely answered in the opinion delivered by Justice Strong in McBride v. Smyth, supra, that we feel justified in quoting therefrom at length. He says : “It is argued by the appellee that this construction excludes the widow and issue of any child who may have died before the designated period of vesting arrived, and
. The conclusion that we have foreshadowed is strengthened,, if it is affected at all, by an examination of the context. The provision concerning the share of the testator’s daughter Kate,, tends to show (we do not say it is conclusive) that the period, referred to in the clause for construction was the termination of the precedent estate. Nor is the conclusion weakened by the provision inserted out of abundant caution, or because of some erroneous notion of the law, shutting out the childless, widows of deceased sons.
Returning to the clause of the will above quoted, and upon the construction of which the case turns, we find no obscurity in the disposition of the testator’s estate. It contains no redundant nor repugnant words. It was evidently drawn by one who knew their meaning and their effect in the connection in which they were used. Why then should we strike out. any of them or refuse to ascribe to them the meaning and effect the testator presumably intended them to have ? The words of a will ought to be construed according to their natural and ordinary meaning unless they are qualified by the context or there
We conclude that the plaintiffs are the owners of the real,.^ tate in question, and are able to make a good title; therefqyf¿ they were entitled to judgment. ,
The judgment is reversed, and the record is remitted to court below with directions to enter judgment for the plaintiffs for the sum of $1,415 with interest and costs. T