No. 357 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED DECEMBER 23, 1981 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, ORPHANS NO. 1902 OF 1965
Delano M. Lantz, Harrisburg, for appellant.
Bernard Chanin, Philadelphia, for participating party.
Cirillo, Johnson and Montemuro, JJ. Johnson, J., filed a dissenting opinion.
[ 320 Pa. Super. Page 193]
This is an appeal from a Final Decree of December 23, 1981, issued by the Court of Common Pleas of Luzerne County, Orphans' Court Division, which dismissed objections to a Petition for Adjudication and Account.
Israel Schwarzbarth died testate on December 17, 1965, and his Will and Codicils were probated on December 31, 1965. Among the assets of his estate was a trust, created out of the residuary estate, the income of which was to be paid to his widow, the executrix, Goldie Schwarzbarth (hereinafter "Goldie").*fn1 Mrs. Laura Freiman, decedent's adopted daughter and the appellant here, filed objections to the account on November 18, 1969 and amended objections on October 18, 1978, claiming that she was entitled to a share of the trust property.*fn2 The basis for her claim was that
[ 320 Pa. Super. Page 194]
Goldie had failed to comply with the terms of the trust and had thereby forfeited her interest therein.*fn3
The matter was heard before the Orphans' Court which found that the requirements set forth in decedent's Will, relating to the trust, had been complied with and entered an Adjudication and Decree Nisi to that effect on November 12, 1981. Appellant filed a motion for leave to file exceptions nunc pro tunc to the Adjudication and the Decree. The Orphans' Court, on December 23, 1981, entered a Final Decree, which while granting the motion to file exceptions nunc pro tunc, dismissed the exceptions in their entirety.
Paragraph 2, Subsection (a) of Israel Schwarzbarth's Will, executed on February 23, 1965, and on which the appellant's claim is predicated, provides as follows:
To pay the net income therefrom periodically, but not less than quarterly, to or for the benefit of my wife, GOLDIE, during her life or for so long as she shall retain the surname of SCHWARZBARTH, whichever event shall first occur.
Subsection (b) of Paragraph 2 of the Will was altered by Codicil dated June 25, 1965, and provides that,
"Upon the occurrence of either of the two events mentioned in Subparagraph (b) of this Item of my Will, the said Trust shall terminate and the Trustee shall distribute all the undistributed principal and income, free of Trust, in three equal shares, with one of the said shares to go to my daughter, LAURA, another of the said shares to my daughter, MAXINE, if they are then living, and third of the said shares shall be cut up into as many parts as I have grandchildren then living, that is to say, children of my said daughters, LAURA and MAXINE, with each of the said grandchildren to take per capita. In the event, however, that either of my daughters, LAURA or MAXINE, should not survive the occurrence of either of the two events mentioned in Subparagraph "A" of this item,
[ 320 Pa. Super. Page 195]
then the share of such deceased daughter as she would have received had she survived, shall be paid to her issue, per stirpes, free of Trust."
Appellant contends that Goldie's remarriage to A. David Fried on May 18, 1969, in and of itself, or, in the alternative, the occasional use of her marital surname constitutes noncompliance with the condition set forth in subsection (a) which provides that the income of the trust shall be distributed to Goldie "during her life or for so long as she shall retain the surname of Schwarzbarth. . . ." (emphasis added). Therefore, appellant contends that since Goldie has not "retained" the surname of Schwarzbarth within the terms of decedent's Will, Goldie's life estate therein has been forfeited and the principal and undisposed income should be distributed pursuant to the terms of subsection (b) of the second paragraph of the probated Will.
The Orphans' Court, after determining that the intention of the testator was unclear from the actual language utilized in his Will, looked to extrinsic evidence and found that Goldie had retained the surname of Schwarzbarth in the manner and to the extent intended by the decedent. For the following reasons we affirm the holding of the Orphans' Court.
The process of testimentary adjudication has been well-established by the Pennsylvania Supreme Court.
It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator. 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. Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, . . . 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 ...