Appeals, Nos. 334 to 343, inclusive, 346, 367 to 379, inclusive, and 381, Jan. T., 1960, from decree of Orphans' Court of Philadelphia County, No. 636 of 1959, in re estate of Jay R. Grier, deceased. Decree reversed; reargument refused May 31, 1961.
Paul Maloney, with him Philip A. Bregy, Eric A. McCouch, Ralph C. Busser, Jr., Joseph N. DuBarry, IV, William C. Ferguson, Jr., H. Clayton Louderback, James A. Matthews, Jr., Samuel W. Morris, A. J. Drexel Paul, Jr., Frank O. Schilpp, William P. Thorn, Seth W. Watson, Jr., Thomas S. Weary, Albert C. Weymann, Jr., and Helen M. Wilcox, for appellants.
B.I. deYoung, for appellant.
John Harper and William H. S. Wells, with them John R. Suria, and Saul, Ewing, Remick & Saul, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
The present appeals question the interpretation placed by the court below upon the will of Jay R. Grier who died resident in Philadelphia on June 13, 1958, at the age of 87. Mr. Grier had never married and left to survive him as his heirs at law and next of kin three cousins, two on his maternal side and one paternal. For 67 years he had been a member of the bar of Philadelphia County and, in the practice of his profession, had acquired a reputation as a specialist in probate and orphans' court matters. His will is typewritten, the typing evidently being his own work. The validity of the will is undisputed. The sole question of law involved is as to the quantum of the decedent's estate made subject to his testamentary dispositions.
By Item One of the will, the testator ordered and directed his executors to sell his personal property and, "after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations, as hereinafter bequeathed, that is to say:" Then follow the names of four individuals (including the two maternal cousins) and twenty-three eleemosynary corporations
with a specified sum of money allocated to each, "free of all taxes and absolutely." The sums so specified aggregate $125,450, or roughly 20% of the decedent's net estate available for distribution after payment of all debts and taxes.
Following the last of these monetary allocations, there is a blank space in the will, about two inches deep and the width of the page; and, immediately following the blank space is Item 2, which is the concluding dispositive provision of the will.
By Item 2, the testator authorized and directed his executors to sell his residence property in Germantown and "to distribute the proceeds to and among the legatees as hereinebefore [sic] named." This property was the decedent's only realty and had a value of approximately $6,000.
The testator nominated and appointed two friends as executors of the will and signed it on May 7, 1955. Upon the death subsequently of one of the named executors, the testator on March 18, 1956, wrote in longhand on the bottom of the will, and signed, a codicil appointing a substitute co-executor for the one who had died.
It is agreed on all sides that at least the last named beneficiary and monetary allocation under Item One was typed in a portion of the blank space some time after the testator had typewritten and executed the rest of the will. This is evident from the fact that the type in the last specification is lighter in shade than the preceding typing and the left-hand margin is indented by the width of three type spaces beyond the margin established when the will was originally written. There is also a deviation of two type spaces in the marginal indentation of the three named beneficiaries immediately preceding the last one. It is possible, therefore, that those three specifications were also typed in the blank space subsequent to the testator's
execution of the will as originally written. But, however that may be, no one questions that the last beneficiary's name and monetary allocation was typed in the blank space some time subsequent to the typing of the original will.
The auditing judge concluded that the decedent's testamentary intent, as evidenced by the written words of his will, was that the whole of his net estate "after all debts, inheritance taxes and the like have been fully paid" should be distributed "to and among" his testamentarily named beneficiaries in the proportions that their respectively specified monetary interests in the decedent's estate bear to the total sum of all such designated interests. On exceptions to the decree nisi entered by the auditing judge, the court en banc reversed and substituted the final decree now here on appeal. This decree, instead of awarding the "residue" of the decedent's estate after payment of "all debts, inheritance taxes and the like" to the testamentarily named beneficiaries, restricts the distribution to them to the specified sums of the monetary allocations. The result is an intestacy as to four-fifths of the decedent's estate available for distribution and, this, the court awarded to the testator's three cousins. The maternal cousins, as already stated, are among the named beneficiaries in the will. But, the testator bequeathed nothing to his paternal cousin whom he had neither seen nor heard of for years, according to the evidence adduced at the audit. The testator's deliberate intent to exclude that cousin from sharing in the distribution of his estate could hardly be more evident.
The primary testamentary intent, as plainly expressed in Item One of the will, is that "any and all" of the decedent's personal property should be sold and "after all debts, inheritance taxes and the like have been fully paid" the "residue "(i.e., ...