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SWOPE ESTATE. (01/06/56)

January 6, 1956

SWOPE ESTATE.


Appeal, No. 326, Jan. T., 1955, from decree of Orphans' Court of Lanceaster County, 1954, No. 145, in re estate of Walter F. Swope, dec'd. Decree affirmed.

COUNSEL

John I. Hartman, Jr., with him Windolph & Johnstone, for appellant.

No argument was made nor brief submitted for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stearne

[ 383 Pa. Page 495]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This appeal concerns the construction of a holographic will, a photographic copy of which is as follows:

(Illustration omitted)

[ 383 Pa. Page 496]

Testator died February 20, 1954. He left to survive him as his only heirs two sons, John and Paul. According to the audit of the executor's account, the estate consists of $16,517.80. The auditing judge awarded the net estate to the two sons. Donald Swope, testator's nephew, contends that he should have been awarded a pecuniary legacy of $5,000. The pivotal question in construing the will is the meaning of the letters "stieial". Judge BOWMAN, in his opinion, states: "Counsel for exceptant concedes that it is meaningless and that there is no word which either sounds like or resembles this combination of letters." We agree with this observation. It is contended by exceptant that these unintelligible letters, whether read as "stieial" or "stecial" sound like special and hence testator's intent is apparent that his nephew not only was to be his executor and to take charge of his funeral, but was to receive "a special bequest of $5,000."

There is little which we can profitably add to the opinion of the learned court below. In expounding a will, it is not what the testator may have meant, but what is the meaning of his words. It does not extend to a consideration of what testator might have said, but did not say: Weidman's Appeal, 2 Walker 359; Estate of Andrew Nebinger, 185 Pa. 399, 39 A. 1049; Ludwick's Estate, 269 Pa. 365, 112 A. 543; Rosengarten Estate, 349 Pa. 32, 36 A.2d 310; Myers Estate, 351 Pa. 472, 41 A.2d 570; Leopold Estate, 356 Pa. 543, 52 A.2d 458; Berger Estate, 360 Pa. 366, 61 A.2d 855; Burpee Estate, 367 Pa. 329, 80 A.2d 721; Britt Estate, 369 Pa. 450, 454, 87 A.2d 243. A comprehensive statement of this principle is made by Mr. Justice JONES in Farmers Trust Company v. Wilson, 361 Pa. 43, 46, 63 A.2d 14: "In Weidman's Appeal, 2 Walker 359, 361, 42 Leg. Int. 338 (1885), Mr. Justice TRUNKEY quoted with approval for this court to the effect that 'The

[ 383 Pa. Page 497]

    question in expounding a will is not what the testator meant, but what is the meaning of his words.' That pronouncement has since been reiterated by the courts of this State many times without question down to the present: e.g., Myers Estate, 351 Pa. 472, 474, 41 A.2d 570; Rosengarten Estate, 349 Pa. 32, 38, 36 A.2d 310; Brock Estate, 156 Pa. Superior Ct. 616, 619, 41 A.2d 347; Tombs Estate, 155 Pa. Superior Ct. 605, 609, 39 A.2d 367; etc. The principle, of course, does not mean that, where a testator's intention is clear, it may be disregarded on the basis of a literal interpretation of his testamentary words. But, it does mean that a testator's intent is not to be arrived at by the expounder's subjective deductions as to what the ...


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