March 20, 1950
IN RE BUTLER'S ESTATE
Before MAXEY, C. J., and DREW, LINN, STERN, STEARNE, and JONES, JJ.
The opinion of Judge Van Roden follows:
Decedent, who was a patent attorney, died May 20, 1923. By his holographic will dated March 2, 1922, he provided: 'It is my will that upon my death all of my personal property shall go to the Philadelphia Trust Co., in Trust, to pay the income therefrom to my wife, Nina C. Butler, and upon her death to my children, Miriam Butler and Noble Butler, share and share alike, and their issue, but if either shall die without issue then the whole of said income to be paid to the other.'
In a subsequent paragraph, testator provided for the sale of his residence and the investment of the proceeds in guaranteed mortgages, 'the income from said mortgages to be paid to my said wife and children as aforesaid'.
Decedent further provided that the 'undivided estate' of his father 'be not sold, and that the income therefrom be paid to my said wife during her life time and upon her death to my children as aforesaid.'
The widow died November 12, 1948. Both children are still alive. Dr. Miriam Butler is, at the present time, unmarried and without issue. Charles N. Butler, Jr. (designated in the will as Noble Butler) has two children, Margaret H. Butler, who is of age, and Charles Butler, who is a minor. The minor is represented in these proceedings by a guardian ad litem who is also trustee ad litem for possible remainder interests as yet unborn and unascertained.
The court has been requested to construe decedent's will to determine whether the widow's death terminated the trust, thereby maturing the principal of the trust fund for distribution, or whether the trust still continues. It is contended by decedent's children that the will gives to them an absolute interest in the remainder of the estate, subject only to the widow's enjoyment of income for life. The grandchildren, however, assert that the interest of decedent's children is limited to participation in income for and during their respective lives, followed by a remainder in favor of their issue, or else there is an intestacy as to the remainder, and that in either event, the exact determination as to the disposition of the remainder must await the death of the survivor of decedent's children.
In construing a will, the intention of the testator is to prevail so far as it is disclosed by the language of the will. In re Fahey's Estate, 1948, 360 Pa. 497, 500, 61 A.2d 880. In seeking the intent of the testator, the test is not what the testator may have meant but rather the meaning of the words which he used. In re Morrison's Will, 1949, 361 Pa. 419, 421, 65 A.2d 384. The intention is to be gathered from the whole will and is not limited to any particular clause. In re Mulert's Estate, 1948, 360 Pa. 356, 359, 61 A.2d 841.
A careful reading of the entire will of this decedent discloses no evidence whatsoever of any intention on his part to make a testamentary disposition of the remainder of his estate. On the contrary, it is clear that he was concerned solely with the disposition of income. Thus, in the first paragraph of the will, quoted above, he directed the payment of income to his wife, and upon her death to his children share and share alike, and their issue. Although he did not state specifically that only the income was to be paid to the children, nevertheless when he provided that if either said child shall die without issue then the whole of said income to be paid to the other, it is readily apparent that he was concerned solely with the disposition of income in that portion of the will. This conclusion is fortified by the latter expressions to the effect that 'the income from said mortgages to be paid to my said wife and children as aforesaid' and, in referring to his father's estate, he further provided 'that the income therefrom be paid to my said wife during her life time and upon her death to my children as aforesaid'.
Thus, there is no specific reference to any disposition of principal and all references to disposition of income 'as aforesaid' relate to the scheme set forth in the first paragraph of the will above quoted.
It is well settled, of course, that one who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion of it; accordingly, a will must be construed to avoid an intestacy if it is possible to do so, In re Carmany's Estate, 1947, 357 Pa. 296, 299, 53 A.2d 731, 732, 174 A.L.R. 311, and all doubts are resolved against an intestacy. Siple v. Greumelli, 1947, 357 Pa. 237, 241, 53 A.2d 607. But the disinclination of a court to declare a partial intestacy is not a sufficient warrant to permit interpretation to assume the proportions of reformation, and the court may not properly insert into a will a substantive disposition of property which the testator, whether by design or inadvertence, failed to make. In re Verner's Estate, 1948, 358 Pa. 280, 285, 56 A.2d 667.
Decedent's children seek to bring the instant case within the rule that an absolute gift of income without limitation of time or amount is tantamount to a bequest of the corpus. See Carmany Estate, supra. In that case, the testator provided for the payment of a specified sum of income annually to his wife for life and then provided for payment of 'the balance of the income' unto his 'daughter, Mary O. Forney, her heirs and assigns.' A majority of the Supreme Court declared that had the testator intended to create an active trust to be measured by the life of the daughter, he would have evidenced such intention by the use of the words 'for life', as specified with respect to his wife, rather than by words of inheritance, and it was held that since the gift to the daughter was not only accompanied by words of inheritance but was unlimited and unrestrained as regards time, amount and conditions, it amounted to a gift of the residuary estate.
The instant case is easily distinguishable from the Carmany case in two respects. The testator made no distinction between the gift to his wife and the gifts to his children, and further failed to use words of inheritance with respect to the latter. The language used by the testator indicates his intention that the enjoyment of the gife of income to his children was to be postponed until his wife's death, but aside from this time element, there is no distinction in the quality of the respective gifts. It is also clear that in referring to the issue of his children, the testator intended a substitutionary gift of income in the event that either of his children died leaving issue in the lifetime of his surviving child. In other words, the testamentary scheme conceived by the decedent is that the trust should continue until the death of the survivor of his two children, and that upon the death of the child first dying, the said child's share of income should go to his or her issue, but if said child died without issue, then the entire income is to be paid to the surviving child for life.
The phrase 'heirs and assigns', as used in the Carmany case, is always construed as words of limitation and not of purchase, but 'issue' is not the legal equivalent of 'heirs', and the commonly accepted meaning of the word 'issue' is a description of the person next to take from the testator and not a line of inheritance. In re Lippincott's Estate, 1944, 349 Pa. 538, 37 A.2d 599.
Whether the will contains an implied gift of the principal of the trust fund unto the issue of decedent's children upon the death of his surviving child, or whether there is an intestacy with respect to the principal, is a matter which need not now be decided. As long as valid life estates are in existence, any determination as to the ultimate disposition of the corpus is premature. It may be that when said question becomes ripe for determination, it will appear that the same parties are entitled to distribution of principal in either event. Our present holding is limited to a determination that the trust fund did not terminate upon the death of decedent's widow, the initial life tenant, but continues until the death of the survivor of decedent's children, and that the income from the trust fund shall be distributed to the decedent's children in equal shares so long as both remain alive, and upon the death of the child first dying, his or her share of the income shall be paid unto his or her respective issue, but if said child first dying shall die without issue, then the entire income from the trust fund shall be paid unto decedent's surviving child for the rest of his life.
The decree is affirmed on the opinion of President Judge van Roden. Costs to be paid out of the corpus of the estate.
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