William F. Donatelli, Pittsburgh, for appellant.
Carl Max Janavitz, Janavitz & Janavitz, S. Allen Vatz, Pittsburgh, for appellee.
Jones, C. J. and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Heimin S. Jacobson died testate on February 17, 1972, survived by two children, six grandchildren and one great-grandchild. The testator's will, executed on August 16, 1971, was duly probated. After the first and final account was rendered, petition for distribution was filed and exceptions were taken. Testimony was begun on February 1, 1974, after which time the court terminated the hearing to make a determination as to whether a latent ambiguity existed in the wording of the will. On February 19, 1974, the court entered a decree finding no ambiguity in the will which would permit extraneous testimony and dismissed all exceptions. The decision of the trial court was affirmed by the court en banc and this appeal by two of the remaindermen, Linda Daniels and Connie Kaplan, followed.
No rule is more settled in regard to wills than the general rule that the testator's intent, if not unlawful, must prevail. The common law has consistently proclaimed that the testator's intent is the crux in interpreting every will and that intent must be ascertained from the language chosen by the testator. Cannistra Estate, 384 Pa. 605, 607, 121 A.2d 157, 158 (1956); Sowers Estate, 383 Pa. 566, 570, 119 A.2d 60, 62 (1956); Beisgen Estate, 387 Pa. 425, 432, 128 A.2d 52, 55 (1956); Britt Estate, 369 Pa. 450, 454, 87 A.2d 243, 244-245 (1952). Courts will not search for the testator's intent beyond "the four corners of his will" when the language of that document is sufficiently clear and unambiguous so as to lead the court to believe it can with reasonable certainty effect a distribution in accordance with the testator's desires.
Jacobson, for and during his lifetime and beginning three (3) years after the date of my death shall pay to him the income therefrom and such additional sum out of the principal as may be required to give him the sum of $500.00 per month. In the event my said son is in need of funds for medical care during the first three years after my death, my Trustee may distribute to him up to $5,000.00 from income and principal for such purpose only." The testator then provided for his daughter, Thelma Perilman: "My Trustee shall hold the second share or equal part in trust for the benefit of my daughter, Thelma Perilman, for and during her lifetime and shall pay to her the net income therefrom and such additional sum out of the principal as may be required to pay her the sum of $100.00 per month from this trust so long as she is married and shall pay to her the income therefrom and such additional sum as may be required to pay her the sum of $500.00 per month when and if her marriage has been terminated by death or otherwise." Upon the death of each of the children, "the remaining principal and any undistributed income" is to be divided into equal parts and held in trust for the six grandchildren. In addition, the testator provided that if any monthly payment previously authorized to be made should be insufficient in the opinion of the trustee to provide for the welfare, support and education of "such beneficiary and members of his or her immediate family," the trustee is authorized in its discretion to use principal for such purpose and as it deems advisable.
The remaindermen propose that the provisions of the will limit the testator's son and married daughter to the specific monthly sums of $500.00 and $100.00 respectively. However, in the absence of a different intent appearing from the will a bequest of income ordinarily means the whole of it or at least the entire net income. McManus Estate, 361 Pa. 122, 63 A.2d 75 (1949). See also 96 C.J.S. Wills § 1036 (1957). The plain and usual
meaning of the words used by the testator led the lower court to the conclusion that the will directs the trustee to pay the income from the trusts to the beneficiaries; and if that income is less than the minimum amounts specified, the trustee can invade the principal to insure the payment of a minimum amount per month. We agree. It is important to note that in the sentence immediately following the creation of his son's trust, the testator had no difficulty in clearly expressing his desire to limit to a specific sum the funds to be given to his son for medical expenses in the three years following the testator's death. Furthermore, the only reference in the will to the distribution of any excess income which might be accumulated, accrued or invested in the children's shares is that upon the death of the children, "the remaining principal and any undistributed income" is to be equally divided and held in trust for the grandchildren.*fn2 It is clear from an analysis of the will that the intent of the testator was to provide his children with life estates. The trustee is directed to pay Thelma Perilman and Robert L. Jacobson the income from the principal shares and to invade the principal if such income was insufficient to assure them specified minimum sums. Additionally, the trustee at his discretion can invade the principal to provide for the welfare, support and education of any beneficiary and members of his or her immediate family and to pay part or all of his funeral expenses. There is, however, a question as to what is meant by the words "and any undistributed income."
No specific reference is made in the will as to the disposition of the income accumulated in the son's share in trust for the three ...