Appeal from decree of Orphans' Court of Beaver County, No. 1091 of 1964, in re first and final account of Western Pennsylvania National Bank, successor by merger to Beaver County Trust Company, executor of estate of Mary E. Moltrup, deceased, as life tenant under last will and testament of Walter J. Moltrup, deceased.
John D. Ray, with him Ray & Good, for appellants.
James M. Houston, with him Hilary G. Lynch, and Houston, Cooper, Speer & German, for appellee.
Samuel C. Holland, Special Assistant Attorney General, Charles A. Woods, Jr., Deputy Attorney General, and Edward Friedman, Attorney General, for Commonwealth, as parens patriae for charitable trusts.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Jones. Mr. Justice Eagen joins in this dissenting opinion.
The questions involved in this appeal are many and the record is confusing. However, the two principal questions may be thus stated: (1) Did the unconsumed property which originally was part of the residuary estate of Walter J. Moltrup, husband of Mary E. Moltrup, together with the accretions thereof, belong to their son Merle as remainderman under the will of his father, or did such property belong to appellants and others, all of whom were appointees under Mrs. Moltrup's will; and (2) is Merle's executor estopped from asserting Merle's claim thereto by a prior accounting of the executrix of Mr. Moltrup's estate?
Walter J. Moltrup died November 1, 1940 leaving a will dated March 16, 1935. He was survived by his wife Mary E. Moltrup who died August 21, 1958, and their son Merle who survived both his father and mother and died on September 1, 1962. Merle was survived by his wife Viola, but left no issue.
Several appointees of Mrs. Moltrup's will appeal from a Decree of the Orphans' Court which sur an executors' account in Mr. Moltrup's estate directed distribution to Merle's executor of Mr. Moltrup's unconsumed residuary estate, including all the accretions thereof. Under Mr. Moltrup's will, his wife was the life tenant and donee of a power of consumption, with the further powers hereinafter referred to. The Orphans' Court further decided that under Mr. Moltrup's will, his wife Mary had no absolute or unconditional power of appointment and, we repeat, that Mr. Moltrup's unconsumed residuary estate with all its accretions was distributable under his will to his son Merle, subject to certain limitations hereinafter set forth.
The facts are so unusual and complicated that it is necessary to quote at length from Walter J. Moltrup's will.
"All the rest, residue and remainder of my estate, of whatsoever character, and wheresoever situate, now owned, or hereafter acquired, by me, I give, devise, and bequeath to my wife, Mary E. Moltrup, for and during the term of her natural life, with full power of consumption of both principal and income, and with the right of sale of real estate of which I may die possessed, I further direct that my wife shall not be required to give any bond, or bonds, or to give any account of, or concerning, her consumption and use of the estate herein given her.
"Upon the death of my wife, Mary E. Moltrup, I give, devise and bequeath all the rest, residue and remainder of my estate not consumed by her in her lifetime, as well as the stock hereinbefore bequeathed, in paragraph II*fn1 hereof, to my son, Merle A. Moltrup, subject, however, to any trust or trusts that my said wife may appoint or make concerning the same in her Last Will and Testament, and, in the absence thereof, to him absolutely.*fn2 . . .
"It is my wish, will and intention that my wife, Mary E. Moltrup, shall have the right, if, in her judgment, it is advisable, in and by her Last Will and Testament, to create and make any and all trusts she may wish in favor of my son, Merle A. Moltrup, of any interest or estate passing to him by virtue of this will.
"If my son, Merle A. Moltrup, shall predecease my wife, then the stock bequeathed in paragraph II hereof to my wife, Mary E. Moltrup, in trust for my son, Merle A. Moltrup, I give, devise and bequeath to my wife, for and during the term of her natural life with full power of consumption of both the principal and income thereof.
"If my son, Merle A. Moltrup, shall predecease my wife, leaving lawful heirs to survive him, then any part of my estate remaining unconsumed by my wife at the time of her death, I give, devise and bequeath to the lawful heirs of my son, Merle A. Moltrup.
"If, at the time of the death of my wife, Mary E. Moltrup, my son, Merle A. Moltrup, shall have died, leaving no lawful heirs, then I direct any part of my estate remaining unconsumed by my wife shall be disposed of by her will to whom and in such amounts, and under such conditions as she sees fit.
"In the event of the death of my son, Merle A. Moltrup, without lawful heirs, prior to the death of my wife, Mary E. Moltrup, and in the further event that my wife shall make no disposition of any part of my estate remaining unconsumed at the time of her death, then I give, devise and bequeath all the rest, residue and remainder of my estate so remaining unconsumed to my heirs at law, according to the Intestate Laws of the Commonwealth of Pennsylvania in effect at the time of my decease."
It has long been the well established law in Pennsylvania that a testator's intent is the polestar in interpreting a will.
In Hoover Estate, 417 Pa. 263, 207 A.2d 840, the Court said (pp. 266-267): "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 Pa. 629, 162 A.2d 626; Wanamaker Estate, 399 Pa. 274, 159 A.2d 201; Hope Estate, 398 Pa. 470, 159 A.2d 197.'"
"'. . . "'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 he meant to say, but what is the meaning of his words. Kelsey Estate, 393 Pa. 513, 143 A.2d 42; Britt Estate, 369 Pa. 450, 87 A.2d 243; Sowers Estate, 383 Pa. 566, 119 A.2d 60; Cannistra Estate, 384 Pa. 605, 121 A.2d 157.' Saunders Estate, 393 Pa. 527, 143 A.2d 367. See to the same effect Althouse Estate, 404 Pa. 412, 172 A.2d 146. . .": Woodward Estate, 407 Pa. 638, 640, 182 A.2d 732.'"
In Woelpper's Appeal, 126 Pa. 562, 17 Atl. 870 (1889), the Court, speaking through Mr. Justice, later Chief Justice, Mitchell, said (page 572): "In the construction of wills the great general and controlling rule is that the intent of the testator shall prevail. And by his intent is meant his actual intent. It is often said, as in the language of Weidman's App., 42 Leg. ...