Appeal from decree of Orphans' Court of Lancaster County, No. 811 of 1963, in re estate of Mabel S. Wachstetter, deceased.
M. Paul Smith, with him Allen H. Smith, Charles V. Snyder, Jr., and Smith, Aker, Grossman & Hollinger, for appellants.
Robert Ruppin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this dissenting opinion.
The next of kin of Mabel S. Wachstetter appealed from the final Decree of the Orphans' Court which awarded her residuary estate to her residuary legatee, the Quarryville Presbyterian Home.*fn1
Mrs. Wachstetter died testate August 1, 1963,*fn2 leaving an estate of $30,000. She was not survived by her husband or by issue or parents. Her next of kin were three brothers, who are the appellants. They contend that the residuary gift to the Home failed for reasons hereinafter discussed, and that consequently they take under the intestate laws. Mrs. Wachstetter's will dated February 28, 1962 contained the following residuary clause: "Second: I give, devise and bequeath all the rest, residue and remainder of my property, real, personal, and mixed to The Quarryville Presbyterian
Home, R.F.D. No. 2, Quarryville, Pa., absolutely,*fn3 with the understanding that the same shall be used for the care and keep of my beloved husband, Harry H. Wachstetter, as long as he may live."
Testatrix's husband died on June 17, 1963 and thus predeceased her by 40 days. The auditing Judge and the Court en banc decided that the "understanding" clause hereinabove quoted was a condition subsequent, and that the Home's inability, because of the prior death of testatrix's husband to perform the aforesaid condition of caring for and keeping her husband as long as he lived, did not invalidate the absolute legacy which she had given to the Home.
Four important questions are presented: (1) Was this testamentary residuary gift to the Home a condition subsequent or precedent; (2) was parol evidence admissible to aid the Court in ascertaining the intent of the testatrix; (3) if it was a condition subsequent, was it defeated by the prior death of testatrix's husband which rendered performance by the Home impossible; and (4) if the testamentary residuary gift to the Home was valid when the will was executed, was it abrogated and nullified by the subsequent actions of the testatrix and the Home?
Several of these questions are so interrelated in this case that they will be considered and discussed together.
The law is aptly stated in Hoover Estate, 417 Pa. 263, 207 A.2d 840, where the Court said (page 266): "In Houston Estate, 414 Pa. 579, 201 A.2d 592, the Court, quoting from prior decisions, said (pages 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) 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 ...