No. 122 March Term, 1976, Appeal From the Decree of the Court of Common Pleas of Mercer County, Pennsylvania, Orphans' Court Division at Register No. 30464.
Henry E. Sewinsky, Rodgers, Marks & Perfilio, Sharon, for appellant.
William J. Joyce, Cusick, Madden, Joyce & McKay, David Goodwin, Sharon, for Hannah Mary Taylor Estate and Frances Lewis.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion.
William B. Taylor died testate on June 16, 1969, a resident of Mercer County, Pennsylvania. Among the assets of his estate was a mortgage on land in Hartford Township, Trumbell County, Ohio, owned by one Roy Kepner and his wife. The mortgage debt was paid during the course of the administration of the estate, and by their account the executors of Taylor's will proposed that the proceeds of the mortgage be distributed as part of the residuary estate. Mrs. Dorothy Caldwell, of Buryhill, Ohio, the appellant here, filed exceptions to the account, claiming that she was entitled to the mortgage proceeds. The basis of her claim was that by his will the decedent had made a specific devise of this property to Mrs. Caldwell, and that this provision served to pass the mortgage to her. The court below dismissed Mrs. Caldwell's exceptions and confirmed the executors' account absolutely.*fn1 This appeal was then taken.*fn2 We will affirm.
Paragraph Second of William Taylor's will, executed February 29, 1968, and on which the Caldwell claim is based, reads as follows:
"SECOND: I give and devise unto MRS. DOROTHY CALDWELL, Race Track Road, Hartford, Ohio, my undivided interest in the land in Hartford Township, Trumbull
County, Ohio, which I hold with Roy Kepner, to be hers, her heirs and assigns, absolutely and in fee."
The remainder of the dispositive portions of the will consisted of the grant, revoked by a codicil, to one Thomas March of a "first opportunity" to purchase a business conducted by Mr. Taylor, a gift of "all my jewelry" to one Frances Lewis, and a residuary clause devising the remainder of the estate among thirteen beneficiaries in varying percentage shares. Among the residuary beneficiaries were Frances Lewis (20%), three sons of the testator (15% to one and 10% to the others), six grandchildren (5% each), a business friend (5%), and two unidentified donees, a Mrs. Jeannie Reiss and a Mrs. Hannah Mary Taylor, each 5%. Mrs. Caldwell was not named as a residuary legatee. The executors were Alvin Taylor, a son, George Holliday, a friend, and a Sharon, Pennsylvania, trust company.
It is undisputed that William B. Taylor, the testator, did not at the time of his death or at any other time own any "interest in land", divided or undivided, in Trumbull County, Ohio. The executors, accordingly, made no provision in their account or their proposed schedule of distribution for any Ohio land or interest in land. As above stated, the accountants included the proceeds of the mortgage on the Ohio property in the residuary estate.
Apparently at the request of the executor of the estate, but without objection by Mrs. Caldwell or any other party in interest, an evidentiary hearing was held on Mrs. Caldwell's exception to the account. The witnesses were the scrivener of the will, who had been the testator's lawyer, Mrs. Dorothy Caldwell, Mrs. Roy Kepner and the individual executor. At the conclusion of the hearing the auditing judge made factual findings as to the "circumstances surrounding execution of the will and other facts bearing on the question." Sykes Estate, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978). In essence, it was ascertained that in 1960 Roy Kepner and his wife by written agreement gave William B. Taylor the exclusive right to develop real property owned by the Kepners
in Trumbull County, Ohio. The agreement described the Kepners as "owners" and Taylor as "contractor", and provided that Taylor would receive one-half the sale price of each lot. The development project never materialized, however, due to lack of approval of the local planning board. The agreement was placed of record in December, 1968 (nine months after Mr. Taylor executed his will) when a mortgage foreclosure proceeding was commenced against the property. A month later, in January, 1969, Taylor himself purchased the mortgage from the mortgagee by paying the mortgage debt due by the Kepners. According to his lawyer, who handled the transaction, Taylor was obliged to borrow to accomplish this. It was this mortgage which Taylor owned when he died six months later.*fn3
The orphans' court division concluded that the language of Paragraph Second of the will "could pass a mortgage interest", since it was of opinion that a mortgage, although personalty, is also an "interest in land". The court went on to hold, however, that because the mortgage was acquired after the execution of the will but before the death of the testator, and there had been no republication of the will after the date of acquisition, the mortgage could pass only by a general devise or bequest, such as the residuary clause, and not by a specific devise or bequest such as Paragraph Second of the will. See, e. g., Williams v. Williams, 83 Pa. Super. 90 (1924). There was no republication here, for the only codicil to the will was executed before the mortgage was purchased.
Although we agree with the result reached below, our approach is somewhat different.
"It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator." Sykes Estate, supra, quoting Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973). See also Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968). Where a court feels that it can with reasonable certainty ascertain the intent of the testator through examination of the will itself, the court generally does not look to matters external to that document. Kelly Estate, 473 Pa. 48, 373 A.2d 744 (1977); Jacobson Estate, 460 Pa. 118, 331 A.2d 447 (1975); Soles Estate, 451 Pa. 568, 571-572, 304 A.2d 97, 99 (1973). Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, or where a latent ambiguity is discovered, it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent. Sykes Estate, supra; Kay Estate, 456 Pa. 43, 317 A.2d 193 (1974); ...