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KAY ESTATE (03/25/74)

decided: March 25, 1974.

KAY ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 1912 of 1971, in re Estate of Ethel Kay.

COUNSEL

William M. Robinson, with him Reed, Smith, Shaw & McClay, for appellant.

Foster S. Goldman, Jr., with him Ben Paul Brasley and Berkman, Ruslander, Pohl, Lieber & Engel, for appellee.

Jones, C. J., Eagen, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice O'Brien took no part in the consideration or decision of this case. Mr. Justice Manderino dissents. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 456 Pa. Page 45]

Ethel Kay, age 75 years, and a resident of Pittsburgh, Pennsylvania, died testate on April 24, 1971. Her will dated March 19, 1965,*fn1 after making specific bequests, leaves the remainder of her estate to the Pittsburgh National Bank to be held by it as trustee of a charitable trust to be known as "The Ethel Kay and Ida Wasser Memorial Trust." Paragraph four of the will directs the trust shall continue for twenty years from the date of its inception and that the net income shall be distributed in varying degrees to fourteen charitable organizations, all in the Pittsburgh area. At the end of the twenty years, the trust is to be terminated and the principal, together with any accumulated income, is to be distributed to the designated charities in their specified portions.

The will described one of the designated charitable beneficiaries in this manner: "Pennsylvania Home for the Blind, Pittsburgh, Pennsylvania."

After investigation, the executor determined the foregoing description did not exactly identify any charitable organization for the blind located in the Pittsburgh area. Accordingly, the executor notified each of the following organizations of the time and place of the audit of the estate: Western Pennsylvania School for Blind Children, Bayard Street at Bellefield, Pittsburgh, Pennsylvania; Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated, 308 Craig Street, Pittsburgh, Pennsylvania; and, The Greater Pittsburgh Guild for the Blind, 311 Station Street, Bridgeville, Pennsylvania.

These three organizations were represented at the audit in the Court of Common Pleas of Allegheny County, Orphans' Court Division, and each claimed

[ 456 Pa. Page 46]

    to be the intended beneficiary. The court conducted a hearing giving witnesses for each claimant the opportunity to be heard. Each organization convincingly demonstrated its charitable and excellent service on behalf of the blind. Subsequently, the auditing judge entered a decree awarding the bequest to the Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated (hereinafter referred to as the Pennsylvania Association). One of the losing claimants, the Western Pennsylvania School for Blind Children (hereinafter referred to as the School) filed exceptions to this decree, which were later overruled by a court en banc. The School then filed this appeal.*fn2

Initially, we note the court below correctly permitted extrinsic evidence in an effort to determine the identity of the intended beneficiary of the decedent's largess. Generally, the intended beneficiary of a will should, if possible, be determined from the language of the instrument alone. Berks County Tuberculosis Society Appeal, 418 Pa. 112, 208 A.2d 857 (1965). However, where an ambiguity exists in the will itself as to the identity of an intended beneficiary, extrinsic evidence may properly be received to aid the court in establishing the beneficiary's correct identity: Black Estate, 398 Pa. 390, 158 A.2d 133 (1960). This is just such a case.

Certainly, neither of the claimants involved in this appeal are described "with sufficient exactitude to clearly indicate a person or organization legally qualified to take." See Berks County Tuberculosis Society Appeal, supra, at 115, 208 A.2d at 858. The lower court incorrectly held that the testatrix's will was unambiguous and that "the Pennsylvania Association comes closest to the designation used by the testatrix. To reach our conclusion, we need only change the word 'Home' to 'Association'". [Emphasis supplied.]

[ 456 Pa. Page 47]

First, as already indicated, the proper test in determining whether a will is unambiguous is: is it of such similarity as to identify the beneficiary with "sufficient exactitude to clearly indicate a person or organization legally qualified to take." [Emphasis supplied.] Berks County Tuberculosis Society Appeal, 418 Pa. 112, 115, 208 A.2d 857, 858 (1965). It is obvious that the lower court applied an improper standard; it merely determined that the Pennsylvania Association came "closest" to the name used by the testatrix, not that it "clearly" indicated the proper beneficiary.

Second, the lower court was incorrect in stating that only one change is necessary to equate the "named" beneficiary with the Pennsylvania Association. The identifying words "Pittsburgh, Pennsylvania" appear after the names of seven of the fourteen named charitable beneficiaries in the testatrix's will. Of the remaining seven named charitable organizations in the will, two of them contain the word "Pittsburgh" in their title, one (Bickur Cholim Jewish Home For The Aged) located in Pittsburgh is the only such named organization in Pennsylvania, and the remaining four are all nation-wide organizations. Thus, it is evident that the placing of the words "Pittsburgh, Pennsylvania" after the names of many of the charitable organizations was merely the scrivener's style to identify the beneficiary as being located in Pittsburgh. Cf. Berks County Tuberculosis Society Appeal, supra. Therefore, the question we are faced with is, whether it can be unambiguously determined if the charitable gift bequeathed to the "Pennsylvania Home for the Blind" was left to the "Western Pennsylvania School for Blind Children" or to the "Pittsburgh Branch, Pennsylvania Association for the Blind, Incorporated." Although, the Pennsylvania Association is clearly closer in title to the name used by the testatrix, it is not of such similarity as to identify the beneficiary with "sufficient

[ 456 Pa. Page 48]

    exactitude to clearly indicate a person or organization. . . ."

In addition, it has long been held in Pennsylvania that a "latent ambiguity can . . . be developed by extrinsic and collateral circumstances and it is always competent to show that such ambiguity exists." Metzger's Estate, 222 Pa. 276, 281, 71 A. 96, 97-98 (1908).*fn3 The testatrix's "named" beneficiary presents just such a latent ambiguity.

The School introduced evidence showing that it has become known to the public as the "Home" for the blind. To buttress this argument, it contends: "The words used by Testatrix describe three characteristics of her intended beneficiary. First, not only is the term 'Pennsylvania' used in the forepart of the name of the beneficiary, but it is specifically stated that the address is Pittsburgh, Pennsylvania. Both claimants qualify in this respect. Second, it is an organization '. . . for the blind'. Again, both claimants provide services for the blind. Third, and it is submitted most important, Testatrix has characterized a particular function provided by her intended beneficiary. It is a 'Home' for the blind." The School, which educates and trains the visually handicapped, does provide board and lodging for about 95% of its two hundred students; and, hence, may be considered a "Home." While, the Pennsylvania Association, although encompassing a wide range of programs for the visually disabled, does not provide any housing for its clients. Thus, it cannot be considered a "Home." Therefore, we are faced with the problem of whether the testatrix was referring to the School

[ 456 Pa. Page 49]

-- by its often used misnomer. To resolve this ambiguity a court must turn to extrinsic evidence.

Hence, since there is an ambiguity in the will concerning the identity of an intended beneficiary, it was proper for the lower court to have admitted extrinsic evidence to aid the court in establishing the beneficiary's correct identity. Black Estate, 398 Pa. 390, 158 A.2d 133 (1960).

Admittedly, there is no organization in Pittsburgh (or in Pennsylvania) known as the "Pennsylvania Home for the Blind," and it is obvious the intended beneficiary was given an erroneous name by the testatrix. Moreover, the record is persuasive that neither claimant involved in this appeal truly and adequately fits the description, "Pennsylvania Home for the Blind."

The School, although it provides lodging for many of its students, is not the legal residence of the students and, very significantly, its services are limited to children. And, there is nothing in decedent's will indicating she sought to aid children only. Furthermore, there is evidence in the record that in a previous will dated January 14, 1958,*fn4 testatrix also created a charitable bequest for the benefit of various charitable organizations, including the "Western Pennsylvania School for Blind Children, of Pittsburgh, Pennsylvania," and thus apparently knew how to identify the School ...


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