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decided: March 25, 1970.


Appeal from decree of Orphans' Court of Washington County, No. 168 of 1967, in re estate of James B. Chambers, deceased.


Stephen I. Richman, with him Greenlee, Richman, Derrico & Posa, for appellant.

Jonathan Allison, with him Schmidt, Allison & Townsend, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen and Mr. Justice Eagen join in this dissenting Opinion.

Author: Jones

[ 438 Pa. Page 23]

James B. Chambers (testator) left a will creating a trust, the income of which was to be paid to his daughter, Hazel McGill, for her life. After Hazel's death, the income was to be distributed as follows: "Upon her death I direct the income to be paid to her children, if any, and for and during their lives."

This appeal requires a determination of the circumstances, if any, under which testator's grandchild, who was adopted after testator's death, may share in the bequest to the "children" of testator's daughter.

On December 6, 1929, Hazel, who had been married for twelve years but could have no children of her own, adopted a son, Paul McGill. Hazel's father, James B. Chambers, executed his will on December 12, 1930, including the bequest to Hazel's "children, if any." Paul McGill died from an accident in September, 1931, and on May 6, 1933, the testator died. The appellant, William McGill, was adopted by Hazel on October 19,

[ 438 Pa. Page 241937]

. Until her death on May 2, 1966, the trust income was distributed to the appellant's mother, Hazel McGill, and, after her death, the sum of $625, representing unpaid accrued income from the trust up to June 1, 1966, was paid to the appellant. Thereafter, the appellant obtained a citation from the Orphans' Court requiring the trustee to show cause why the future trust income should not be paid to him. After a hearing, appellant's petition was dismissed. From that decree appellant took this appeal.

Under the Wills Act of 1947, P. L. 89, § 22, 20 P.S. § 180.22, the will of any person who died prior to January 1, 1948, is governed by the Wills Act of 1917. The presently pertinent portion of the 1917 Act reads as follows: "Whenever in any will a bequest or devise shall be made to the child or children of any person other than the testator, without naming such child or children, such bequest or devise shall be construed to include any adopted child or children of such other person who were adopted before the date of the will, unless a contrary intention shall appear by the will." Act of June 7, 1917, P. L. 403, § 16(b), 20 P.S. Ch. 2, App. § 228 (emphasis added).

Although the section does not explicitly pertain to after-adopted children, this Court has stated that the effect of this rule of construction is to exclude from a bequest to "children" of a person other than the testator, a child who was adopted after the will was executed. Holton Estate, 399 Pa. 241, 247, 159 A.2d 883, 886 (1960). However, artificial rules of testamentary construction have been legislatively and judicially created merely to aid in what is always the primary goal -- to ascertain and to give effect to the testamentary purposes of the testator. Therefore, where the testator's actual intent can be ascertained, such intent must prevail over any artificially-deduced "intent" which the rules of construction might dictate. Id. at 244, 159 A.2d

[ 438 Pa. Page 25]

    at 885. We will only resort to such rules of construction if the will is unclear or the testator's actual intent is uncertain. Houston Estate, 414 Pa. 579, 586, 201 A.2d 592, 595 (1964).

The intent of the testator may be gathered from a consideration of four items: the language of the will itself, the scheme of distribution, the factual situation as of the date of execution of the will, and the existing factual situation. Id. (and cases cited therein). In the case at bar, unimpeached and uncontradicted evidence was presented at the hearing which indicated: that Hazel McGill could not have children and, therefore, adopted Paul; that this fact was common knowledge in the community of about 1,300 people; that the testator was a leading figure in the area and was well aware of local affairs; that the testator was very close to his daughter, Hazel, and doted upon his adopted grandson, Paul; and that the testator did, in fact, know that Paul had been adopted and that Hazel could bear no children of her own.*fn1 In short, the appellant's evidence clearly established that when James B. Chambers executed his will he knew that Hazel could have no children and that she had adopted Paul. The appellee presented no evidence bearing on this question.*fn2

[ 438 Pa. Page 26]

We return, now, to the will itself wherein a bequest is made to Hazel's "children." Because of the factual situation in 1930, when the will was written, the only natural interpretation that could conceivably be given this bequest is that the testator intended to provide for his adopted grandson, Paul McGill, and for any other children adopted by Hazel in the future. Any other explanation would not only be absurd under the facts of this case, but would render the bequest nugatory. A testator is presumed not to have included mere surplusage in his will. Benedum Estate, 427 Pa. 408, 415-16, 235 A.2d 129, 133 (1967). By his use of the plural noun, "children," the testator evidenced an intent to include in his bequest any child or children which Hazel might have in addition to the one child, Paul, who had already been adopted. Since the testator knew that Hazel could only have additional children by adoption, he must have intended to provide for these children. The provision for Hazel's "children" makes utterly no sense unless it was intended to include after-adopted children.

The court below relied upon the following language from Holton Estate, 399 Pa. 241, 247, 159 A.2d 883, 886 (1960), as dispositive of the instant case: "An examination of this statute clearly reveals the legislative intent: to include within the term 'child' or 'children' of a person other than the testator an adopted 'child' or 'children' provided, however, that such adoption took place before the execution of the will, and to exclude such adopted child or children if the adoption took place after the execution of the will." However, we made it perfectly clear in that case that a prerequisite

[ 438 Pa. Page 27]

    to the application of the quoted rule is the absence of any indication of what was the testator's actual intent. In Holton Estate, we found no such indication on the following facts: the will provided for the testator's son, Howard, and for Howard's children; Howard's wife, not Howard, was incapable of having children; and, no children were adopted by Howard until almost four years after the testator's death. On those facts, it would be equally plausible to either find that the testator did or that he did not intend ...

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