Appeals, Nos. 289 and 290, Jan. T., 1963, from decree of Orphans' Court of Philadelphia County, July T., 1907, No. 191, in re estate of Thomas Y. England, deceased. Decree affirmed; reargument refused April 29, 1964.
Lewis H. Van Dusen, Jr., with him Duffield Ashmead, III, Cuthbert H. Latta, and Drinker, Biddle & Reath, for appellants.
J. H. Ward Hinkson, with him Hinkson & Cantlin, for appellees.
Douglas D. Royal, with him Harold D. Greenwell, J. Montgomery Forster, and Greenwell, Porter, Smaltz & Royal, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Testator died January 2, 1906, leaving a widow, a son and two daughters. By his will, he created a trust with income to his wife and three children for life. Upon the death of his last surviving child, he directed that the principal of the trust be distributed, "... equally amongst the children of my children, who shall then be living, and the issue of such of them as may be deceased, per stirpes, absolutely and in fee."
The last of testator's three children died on April 30, 1962, survived by two children and the two children of a deceased child. Testator's son previously had been survived by three children, one of whom died in 1916 without issue, and his other daughter had died leaving four children. The issue at audit was whether distribution of the principal in remainder to testator's surviving grandchildren was to be per capita or per stirpes. The auditing judge held that the will directed a per capita distribution. This determination, confirmed by the full Orphans' Court of Philadelphia County, resulted in an award of one-ninth of the corpus to each of the eight surviving grandchildren and oneeighteenth to each of the two surviving children of a deceased grandchild. Appellants, the only two children of a deceased child of testator's, take this appeal, contending here, as they did below, that the will directs stirpital distribution.
Our examination and study of the will satisfies us that the auditing judge and the court en banc correctly construed testator's language. We are in full agreement with the adjudication, and we affirm the decree below on the following excerpts from the opinion of the auditing judge:
"In the construction of testamentary writings the testator's intention is all-important; Dinkey Estate, 403 Pa. 179, 182 (1961); Hope Estate, 398 Pa. 470 (1960); Bald Estate, 385 Pa. 176 (1956). If the language employed by the testator in disposing of his estate is plain and clearly discloses his intention, the will interprets itself, and no rules of construction are necessary to aid in its interpretation: Wood v. Schoen, 216 Pa. 425 (1907). See also Wharton Appeal, 373 Pa. 360 (1953); Haydon's Estate, 334 Pa. 403 (1939). It is a matter of common sense, as well as of law, not to attempt to construe that which needs no construction: Brown Estate, 349 Pa. 23, 26 (1944); Reck's Appeal, 78 Pa. 432 (1875); Rzedzianowski's Estate, 148 Pa. Superior Ct. 361 (1942).
"The testator's language in the present case falls squarely within the purview of these truisms. It is so clear, and his intent so plainly evident, that his will interprets itself, leading expressly and inescapably to the conclusion that he intended a per capita distribution of principal among grandchildren and a stirpital distribution among the issue of deceased grandchildren. Such distribution involves no conflict with the provision in the will for stirpital distribution of income to grandchildren and their issue during the continuance of the trust, i.e., during the lives of testator's children. Until the death of his last child, testator obviously, and quite naturally, desired to preserve equality among his children in the distribution of income, as against, or in competition with succeeding or substitutionary life tenants, viz.: the children and issue of ...