Appeal, No. 237, Jan T., 1956, from judgment of Court of Common Pleas of Columbia County, May T., 1955, No. 214, in case of William A. Cryder and Helen J. Freas, individually and as executors of the estate of Fannie A. Evans, deceased v. Blanche M. Garrison. Judgment affirmed.
M. Paul Smith, with him Harvey B. Smith, Smith & Eves, and Smith, Cahall & Aker, for appellants.
Frank C. Elmes, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal is concerned with the interpretation of a will. As in many of such cases, no difference of opinion is admissible with respect to the germane rules of construction. It is only a matter of their relative applicability. The basic question involved is whether a specific devise of the testatrix's "home" property to "three nieces", appositely named, was a devise to them individually or as a class. One of the nieces having predeceased the testatrix, residuary legatees and the decedent's executors asserted that the specific devise lapsed to the extent of a one-third share in the property and fell into the residue.
The issue was raised for judicial decision in an action of ejectment instituted by the executors of the testatrix's will (who were also two of the residuary legatees) against the surviving nieces' subsequent transferee of the property. On stipulation of counsel, the court disposed of the proceeding on the pleadings without a jury, there being only one question involved - and that a question of law. After argument by counsel, the learned trial judge entered a final order wherein he found a verdict for the defendant transferee and against the plaintiff executors, entered judgment in favor of the defendant on the verdict and dismissed the complaint with costs following the judgment. In support
of its conclusion of law, the court filed an accompanying opinion holding that the specific devise was of an integral property to the testatrix's three nieces as a class. The executors have appealed the judgment. In addition to the substantive question of law involved, the appellants pose several procedural questions, raising matters not really in dispute, to which we shall refer briefly.
Ejectment is the recognized form of action for the settlement of a question of title: Yarnall Estate, 376 Pa. 582, 587, 103 A.2d 753; Michalak Estate, 377 Pa. 532, 534, 105 A.2d 370. All parties to the record and the court below were agreed that ejectment was the proper procedure for determining the question raised by the pleadings; and no reason has been advanced why it was not appropriate to the instant controversy. Compare Stevenon v. Scott, 188 Pa. 234, 235-237, 41 A. 533. Also, the executors had a right to appeal from the judgment of the court below disposing, as it did, of the question concerning the ownership of property which, as fiduciaries, they were seeking to recover as an asset of the testatrix's residuary estate: Krick's Estate, 342 Pa. 212, 216, 20 A.2d 195. And, by a parity of reasoning, the executors, as parties litigant, had a right to institute the proceeding in the court below. No question of distribution was at any time involved. See Krick's Estate, supra, citing Olney Bank & Trust Company Case, 337 Pa. 357, 360, 361, 11 A.2d 150, 151, 152.
The appellants further argue that they are not barred by laches from pursuing their right to a legal remedy in the premises. As we read the opinion of the court below, the plaintiffs were not held to be so barred. The court's reference to the seeming delay in the plaintiffs' institution of the action was merely an argumentative makeweight in support of the court's
inference that the executors lacked faith in their own contention. However that may be, it is of no materiality here. The action is at law, and the statute of limitations had not run when it was instituted. Analogizing the action to a suit in equity, where laches is applicable, was not relevant to the question involved which, first and last, was simply one of the decedent's testamentary intent with respect to her home property.
By her will of February 7, 1946, the testatrix gave and devised her "residence property ... to [her] three nieces, Edna Turnbach, Emma Turnbach and Gladys Turnbach, to them and their Heirs forever." She next directed her executors "to convert all the rest, residue and remainder of [her] estate into money as soon after [her] death as may be possible, and from the fund so realized, ... [directed] distribution" of pecuniary bequests to twelve named individuals, the Turnbach nieces not being among them. By her codicil, dated June 25, 1946, the testatrix declared, "Let the Turnbach girls have my home but have them pay 2,000 for it to help with expenses as I am afraid until my funeral is paid for and the Government takes out their big fee the rest of the children will not have any thing at all" (Emphasis supplied). By a second codicil, dated September 2, 1946, the testatrix resolutely affirmed, - "I want every thing to be carried out as I have it in my first Codicil except not to have the Turnbachs (Edna, Emma, and Gladys) to pay $2,000 to the estate for my home. I want to give my home to them, free from any charge. They have been very unfortunate and have been very very good to me" (Underscoring, the testatrix's). By her last codicil of April 10, 1948, she cut down the lot size of her devise to her "three (3) nieces - Edna Turnbach, Emma Turnbach and Gladys Turnbach" by reaffirming her devise of her residence at the address
stated "together with the southerly portion of the lot upon which it stands ...."
Five months after the testatrix's execution of her last codical, Edna Turnbach died on September 15, 1948, thus predeceasing the testatrix who died on April 7, 1950.
It is a general rule of construction that, where there is a testamentary bequest or devise to two or more persons, each of whom is specifically named, a presumption arises that the gift or devise is to such persons as individuals and not as a class and, consequently, the share of one who predeceases the testator lapses: see Sharpless's Estate, 214 Pa. 335, 338, 63 A. 884; also Hunter's Pennsylvania Orphans' Court Common Place Book, Vol. II, Legacies and Devises, § 12(j) and cases there cited. This rule is, of course, subordinate to the cardinal rule of construction that "The intention of the testator is the pole star in the interpretation of every will and that intention must be ascertained from a consideration of the entire will, including its scheme of distribution as well as its language, together with all the surrounding and attendant circumstances": Lifter Estate, 377 Pa. 227, 231, 103 A.2d 670. "Neither precedents nor rules of construction can override the testator's expressed intent": Long's Estate, 270 Pa. 480, 487, 113 A. 675.
The legal concept with respect to the presumption first above mentioned was well expressed for this court by Mr. Justice STEWART in Sharpless's Estate, supra, as follows: "The proposition that a gift to several individuals described by their respective names, may be construed a gift to a class, if it is apparent from the will that the testator so intended, is not open to dispute. It is but a corollary of the larger and more comprehensive rule that subordinates everything in the construction
of a will, to the expressed intention of the testator." And, in Billings's Estate (No. 1), 268 Pa. 67, 70-71, 110 A. 767, it was recognized that "Even though the beneficiaries are named the gift may still be one to a class if it otherwise appears from the will that the testator so intended and that the enumeration was merely for the purpose of fixing with certainty the members of the class".
The learned court below, guided by the foregoing basic principles of testamentary construction, logically and cogently deduced from the testatrix's will and codicils a clear intent that the "Turnbach girls", as a class, were to receive her "home" and the southern end of the lot whereon it was situated. True enough, the testatrix, in devising her "residence property" by her will proper to her "three nieces", also named them individually. But, the enumeration was obviously for the purpose of fixing with certainty the members of the class (cf. Billings's Estate, supra) and not for the purpose of individuating aliquot shares in the property. The will named many other persons as ...