Appeals from decree of Orphans' Court of Luzerne County, No. 111 of 1919, in re estate of Levan O. Hoover, deceased.
Hopkin T. Rowlands, with him Hopkin T. Rowlands, Jr., for appellant.
Arthur Silverblatt, for appellant.
William E. Woodside, with him Anthony C. Falvello, Henry A. Giuliani, Robert J. Woodside, and Falvello, Ustynoski, Giuliani & Bernstein, and Cooper & Woodside, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones dissents.
Levan O. Hoover died January 9, 1919 leaving a will dated December 16, 1918 and a codicil dated December 31, 1918. Marion Hoover Evans, testator's last surviving child, and Norma Lee Gruver, the only child of Norman Lee Hoover who was one of testator's deceased children, each appealed from a final decree of the orphans' court which directed a per capita distribution of the principal of the trust estate created by the testator.
Testator pertinently provided as follows: "Eleventh: All the rest and residue of my property, real personal and mixed . . . I direct my Trustee to . . . pay the earnings of said trust fund or as much thereof as she may require to my wife, Mary B. Hoover, for and during her natural life, and at her death pay to my children*fn1 the earnings of said fund, share and share alike as follows: Norman Lee Hoover, Reynolds Oiler Hoover, Lottie Catherine Hoover, John Graham Hoover, Levan Otto Hoover and Marion Margaret Hoover. If any of my said children above enumerated should die, leaving issue of their body, it is my wish and I direct that said issue shall take his, hers or their parents share, and if any of my said children should die without issue of his, hers or their bodies, I direct that the share of said deceased child or children shall go to and vest in the remaining of my children.
more of his children died without issue. Testator demonstrated in and by the clearest language that he knew how to create a per capita distribution (of income) among his children and a per stirpes distribution (of income) among their issue when that was his intent.
There then follows the challenged sentence which mandates the distribution of principal. The question is, Did testator intend to give (1) a per capita share of the principal to his last living daughter (Marion Hoover Evans) and the children of his deceased children, share and share alike, or (2) did testator intend a per stirpes distribution of principal,*fn4 share and share alike to his last living daughter and all his grandchildren, or (3) did testator intend to give his surviving daughter a one-fourth share and the balance of principal per capita or per stirpes?
The lower Court decided that this will is sui generis and that testator intended a per capita distribution of the principal of the trust fund, share and share alike, to his last living daughter and the children of his deceased children. With this construction we agree.
In Houston Estate, 414 Pa. 579, 201 A.2d 592, the Court, quoting from prior decisions, said (page 586-587): ". . . '"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) ...