Appeals, Nos. 263 and 264, Jan. T., 1951, from decree of Orphans' Court of Philadelphia County, Oct. T., 1929, No. 3342, in Estate of George H. Earle, Jr., deceased. Decree reversed; reargument refused January 14, 1952.
C. Brewster Rhoads, appellant, in propria persona, with him Joseph W. Swain, Jr. and Montgomery, McCracken, Walker & Rhoads.
John B. Gest, with him Frank Rogers Donahue and Donahue, Irwin & Gest, for appellee.
Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LANDER
George H. Earle, Jr., died February 19, 1928, leaving a will dated January 24, 1928. In that will he provided by the third paragraph of the Fifth Item of his will as follows: "In the event that my estate, after the payment of taxes, shall at least amount to the net sum of Five Million ($5,000,000) Dollars or over, I give and bequeath to my Trustees in Trust for the benefit of each and every male child of my sons who shall by birth inherit and bear the name of Earle, the sum of One Hundred Thousand ($100,000) Dollars for each one of such male children. Said sum shall be held in Trust upon the same terms, conditions and uses as provided in ITEM THIRD in the trust for the benefit of my granddaughter LOUISE DILWORTH BEGGS, and in ITEM FOURTH in trust for the benefit of my granddaughter EDITH EARLE LEE."
The reference to the other items of the will makes clear that only the income not the principal is given to these grandsons.
The sole question before us on these appeals*fn1 is
whether Anthony Wayne Earle, who was born July 11, 1949, i.e., after the testator's death, is entitled to have a $100,000 trust set up for him in accordance with the paragraph quoted.
At the audit of the Trustees' Third Account such application was made on behalf of the minor by C. Brewster Rhoads, Esq., as guardian ad litem appointed by the Auditing Judge to protect the minor's interest. It was opposed by Frank Rodgers Donahue, Esq., appointed by the Auditing Judge to represent all minor and unascertained remainder interests of the trust estate which comprises the whole residuary estate.
The learned Auditing Judge refused the application, holding that the provision of the will in question must be so construed as to exclude grandsons born after testator's death, which ruling was confirmed on exceptions by the court en banc, Judge BOLGER dissenting.
With all due deference to the learned judges of the court below, who are distinguished in their respective branch of the law, we must conclude they erred and the decree appealed from must be reversed.
It is well settled that the intention of a testator is the polar star in the construction of wills: Sarver's Estate,
Pa. 349, 188 A. 141 (1936); Prime's Petition, 335 Pa. 218, 6 A.2d 530 (1939); Mulert Est., 360 Pa. 356, 61 A.2d 841 (1948). Equally well settled is the corollary proposition that where the language used by the testator is plain and clearly discloses his intention, no rules of construction are necessary to arrive at an interpretation, a principle repeatedly emphasized by Mr. Justice (now Chief Justice) DREW in Boyer v. Campbell, 312 Pa. 460, 167 A. 284 (1933); Haydon's Estate, 334 Pa. 403, 6 A.2d 581 (1939); Brown Estate, 349 Pa. 23, 36 A.2d 335 (1944). And as held in the recent case of Clark Est., 359 Pa. 411, 59 A.2d 109 (1948), it is the actual intent, as ascertained from the language of the will that must prevail in the light of the circumstances surrounding testator at the date of the execution of the will. Hence it is our first duty to examine the will and if possible ascertain its meaning without reference to canons of construction. Groninger's Estate, 268 Pa. 184, 187, 110 A. 465 (1920); Weir's Estate, 307 Pa. 461, 467, 161 A. 730 (1932).
When we peruse the provision in question we see that the testator establishes a class composed of such of his grandsons as are born to his sons and defines the qualifications of members of that class explicitly by the words, "I give and bequeath... for the benefit of each and every male child of my sons, who shall by birth inherit and bear the name of Earle," etc. Analyzing this language it becomes clear that the phrase "each and every" is an emphatic way of saying "all" and can indicate only an intent that no son of his sons be excluded.
Next we note the testator adds to the phrase "each and every male child" the words "of my sons," which indicates all male progeny of both sons are intended to be included. The use of the plural becomes more important when we view the extraneous circumstances of
the family situation from the testator's arm chair. (This, as pointed out by Mr. Justice ALLEN M. STEARNE in Schmick Estate, 349 Pa. 65, 70, 36 A.2d 305 (1940), we must do. See also Jackson's Estate, 337 Pa. 561, 12 A.2d 338 (1940); McGlathery's Estate, 311 Pa. 351, 166 A. 886 (1933)). The testator at the date of the will had two sons, George H. III, age 37 and married, who had three sons living at the date of the will and at the date of testator's death and one en ventre sa mere born thereafter on September 26, 1928, and Ralph Earle, 35 years of age, who though married had no children living at either the date of the will or of testator's death and none so far born since testator's death. Testator was on cordial terms with both of his sons for he designated both sons as co-trustees of the trust under his will. These circumstances confirm testator's intent to include any male offsprings of both of his sons whenever born. Certainly it is unthinkable that he intended to cut off sons of Ralph, his younger son, just because he had no sons then.
Significant also is the future tense indicated by the word "shall" in the phrase, "who shall by birth inherit and bear the name of Earle." To give effect to the future tense, it is reasonable to regard the testator's intent as including in the described class those born after his death as well as before.
It is equally clear that the motivating purpose that influenced these special bequests of income was pride in the family name and desire to have that name perpetuated by as many lineal male descendants of the blood and name as possible. To exclude grandsons that came within the described class merely because they happened to be born after the testator's death would do violence to the very purpose that actuated the gifts. ...