Appeals, Nos. 145 and 146, Jan. T., 1964, from decree of Orphans' Court of Philadelphia County, Jan. T., 1896, No. 5, in re estate of Henry H. Houston, deceased. Decree affirmed; reargument refused July 6, 1964.
Charles J. Biddle, with him John E. Walsh, Cuthbert H. Latta, and Drinker, Biddle & Reath, for appellants.
James A. Montgomery, Jr., with him Paul Maloney, and Pepper, Hamilton and Scheetz, for appellants.
Richard K. Stevens, with him Seth W. Watson, Jr., and Stradley, Ronon, Stevens and Young, for appellees.
Irvin Stander, Special Counsel, with him Charles F. Nahill, Special Assistant Attorney General, Vincent X. Yakowicz, Deputy Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Harold C. Wilkenfeld, with him Lee A. Jackson, Meyer Rothwacks, Louis F. Oberdorfer, Assistant Attorney General, of the Washington, D.C. Bar, Sidney Salkin, Assistant United States Attorney, and Drew J. T. O'Keefe, United States Attorney, for United States.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This appeal involves the important questions - was testator's gift of principal contingent or vested, and if vested, when vested and who took thereunder?
Henry H. Houston died a resident of Philadelphia County on June 21, 1895. His will was executed on February 2, 1892. At that time he had a wife, Sallie S. Houston; a married son, Samuel F. Houston; a married daughter, Sallie Houston Henry; and an unmarried daughter, Gertrude Houston, who married and became Gertrude Houston Woodward on October 9, 1894. All of these children survived the testator.*fn1 At the time of testator's death he had six living grandchildren; six other grandchildren were born after his death.
Testator executed a lengthy will, including a lengthy trust. The will contains 64 items and covers 25 printed pages. Testator provided in "Item Fiftyninth: All the rest residue and remainder of my estate real and personal wheresoever the same may be I give devise and bequeath to the Executors hereinafter named in trust to pay over the net income*fn2 arising therefrom in the manner following." There then follow five separate gifts of a specified amount to be paid annually to five of testator's cousins "during her [or his] life." These are followed by 11 directions to pay out of the said income the sum of specified dollar amounts annually to named individuals during their respective lives, and at the death of each, he provided: "I direct to be paid out of the principal of the residuary estate the sum of [specified] Dollars in equal shares to each of his children who may be living at the time of his decease,*fn3 the children of any deceased child taking however their deceased parents share." There then followed three additional gifts to a Church, and an annual gift to a sister-in-law during her life upon certain conditions.
We come then to Paragraph Twenty-second of Item Fifty-ninth which, relevantly, is the most important part of the will, and reads:
"Twenty-second: All the rest, residue, and remainder of the net income of my estate including herein such income as may fall into and become a part of the residue by reason of the death of any of the beneficiaries hereinbefore mentioned, I direct shall be paid and distributed one fourth thereof to my beloved wife Sallie S. Houston during her life. One fourth thereof to my daughter Sallie H. Henry during her life, one
fourth thereof to my son Samuel F. Houston during his life and one fourth thereof to my daughter Gertrude Houston during her life. On the death of my said wife I direct that the one fourth of the income payable to her shall thereafter be payable to my said children in equal shares during their lives (sic). and should any of my said children be dead leaving children at the time of the death of their mother I direct that the said income be paid to the children of such deceased child until the death of my last surviving child. On the death of any one of my said children without leaving lawful issue him or her surviving I direct that the income heretofore payable to such deceased child shall be paid to my wife and surviving children in equal shares and if either of the said children shall then be dead leaving issue, such issue shall take the deceased parents share. On the death of any one of my said children leaving lawful issue him or her surviving, I direct that the income to which such deceased child would have been entitled if living, shall be paid in equal shares to and among his or her children and the issue of deceased children, if any there be, such issue taking their deceased parents share, until the death of my last surviving child. On the death of my last surviving child I direct that the whole of the principal of the trust estate shall be distributed in equal portions to and among my grand-children, the children of any deceased grand-child taking their deceased parents share."*fn4
Both appellants and appellees also point out, although each draw a different conclusion therefrom, that testator specifically provided for the spouse of each of his then married children. For example, in the
Fifth Item of his will testator gave his son-in-law $100,000, and in the Sixth Item, his daughter-in-law $100,000 in the 6% bonds of the International Navigation Company. He also made many bequests to his relatives, in-laws, and friends, some without any gift over, most of them, however, with a gift over upon or in the event of the death of the first legatee or life tenant.
Sallie S. Houston, testator's widow, died intestate on November 13, 1913; his daughter, Sallie Houston Henry, died on July 6, 1938; his son, Samuel F. Houston, died May 2, 1952; and testator's last surviving child, his daughter, Gertrude Houston Woodward, died on October 2, 1961.
(1) Samuel F. Houston (testator's son) had four children, three of whom still survive. The fourth, Henry H. Houston, II, born April 5, 1895, was killed in action in World War I, on October 18, 1918. His father, Samuel F. Houston, was his sole heir.
(2) Sallie Houston Henry (testator's daughter) had two children (daughters) who survived testator's last living child. She also had a son, T. Charlton Henry, who predeceased his mother, leaving a wife and two daughters who are still living. Charlton willed his entire estate to his wife.
(3) Gertrude Houston Woodward (testator's daughter) had three children who survived her and two who predeceased her. Her son, H. H. Houston Woodward, was born February 27, 1896, and was killed in action in World War I on April 1, 1918. Another child of Mrs. Woodward, Gertrude Houston Woodward, Jr., who was born April 21, 1909, died March 6, 1934. Each of these children died intestate and unmarried. The sole heirs of each of these deceased children were their parents, Gertrude H. Woodward and Dr. George Woodward.
If the remainders for testator's grandchildren were vested at testator's death, or became vested on birth after testator's death, subject in both cases to being divested in favor of their children if any such grandchild predeceased testator's last surviving child, the principal of the residuary trust (which is carried at over $25,000,000, but is allegedly worth approximately $145,000,000) will be divided into 12 equal parts - eight of such parts being for testator's eight living grandchildren; three of such parts for the heirs (or personal representatives) of testator's three grandchildren who died after testator's death but before the death of testator's last surviving child (Mrs. Woodward), intestate and unmarried; and one such part for the two (living) daughters of testator's deceased grandson, T. Charlton Henry.
If, however, the remainders were contingent upon testator's grandchildren or their children living at the death of testator's last surviving child (Mrs. Woodward), testator's remainder estate would be divided into and distributed in nine equal parts - eight such parts to testator's eight living grandchildren, and the ninth part to the two living daughters per stirpes of testator's deceased grandchild, T. Charlton Henry.
The Orphans' Court unanimously held (in scholarly opinions) that testator gave a vested interest in the principal of his residuary trust estate in equal portions to his grandchildren who (a) survived him, or (b) were born after his death, the children of any deceased grandchild taking their deceased parent's share and consequently divided (and awarded) the principal into 12 equal parts.
We first place ourselves in the armchair of the testator and remember that the intention of the testator is the polestar in the construction of every will.
In Lewis Estate, 407 Pa. 518, 180 A.2d 919, the Court (quoting from Burleigh Estate, 405 Pa. 373, 376, 175 A.2d 838), recently said (page 520): "'It is now hornbook law (1) that the testator's intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, or the testator's intent is for any reason uncertain: Dinkey Estate, 403 Pa. 179, 168 A.2d 337; Pruner Estate, 400 Pa. 629, 162 A.2d 626; Wanamaker Estate, 399 Pa. 274, 159 A.2d 201; Hope Estate, 398 Pa. 470, 159 A.2d 197.'"
This law is stated and reiterated in a myriad cases before and several after Lewis Estate. In Walton Estate, 409 Pa. 225, 186 A.2d 32, the Court once again pertinently said (page 231): "'"'No rule regarding wills is more settled than the great General Rule that the testator's intent, if it is not unlawful, must prevail'"': Collins Estate, 393 Pa. 519, 522, 143 A.2d 45. We reiterate what by now is hornbook law: '"The testator's intention is the pole star in the construction of every will and that intention must be ascertained from the language and scheme of his [entire] will [together with the surrounding facts and circumstances]; it is not what the Court thinks he might or would or should have said in the existing circumstances, or even what the Court thinks ...