Ihrie's Estate , 162 Pa. 369 ( 1894 )

Opinion by

Mr. Justice Mitchell,

The testatrix wrote, “ the residue of my estate is to be divided between my husband’s grand children and the children of Ferdinand Poree.” Did she mean that the fifteen grandchildren should take one half, and the four Porees the other half, or did she mean a division per capita, one nineteenth to each ?

The word “ between ” refers properly to two, and not more. It is.true that it is not unfrequently used, especially by the uneducated, and colloquially, in the sense of “ among,” as referring to more than two objects. But that admittedly is not its correct use. The presumption is in favor of the proper and correct use of words, whether technical or belonging to the language of ordinary life. If we rest on this presumption the distribution of the residuary estate into two parts was right.

It is conceded that neither group of beneficiaries could have inherited from the testatrix, and we therefore get no light from the analogy of the intestate law, nor are there proved any family relations or other special circumstances which can be taken into consideration as guides to actual intent. We come back therefore to the presumption as to the meaning of the words, unless we find something in the will itself that shows their use in a different sense.

It is said that the popular use of “between” by the uneducated is in the sense of “ among,” and that the testatrix was illiterate. The auditor reports however that she “ was a woman of education and refinement,” though the will itself would not indicate education either in spelling or grammar. That however is far from conclusive, as there are many people of fair education who never acquire the habit of correct spelling, and as to the grammar the faultiness in that respect may be accounted for, as well as the very confused and disorderly arrangement of the bequests, by the suggestion of the learned judge below, that this will was made carelessly and intended at first as a mere memorandum. But if we concede that the testatrix was illiterate, it would not follow that she-used the word incorrectly. The great mass of the words even of illiterate persons are used correctly. The lapses are only occasional, or the language would cease to serve the purposes of communication. Illiteracy therefore raises no presumption that words are used incorrectly. At most it lets in the conjecture that they may be. That is the utmost effect that it could have here. We can suppose or guess that the testatrix may have meant “ among,” but even that guess becomes highly improbable when we note that, in the clause preceding the one in question, she uses the word “ among ” with entire accuracy, directing her “ linen to be divided among the grandchildren,” and follows this immediately by the direction that the residue of her estate shall be divided not “ among ” but “ between ” the grandchildren and the children of Ferdinand Poree.

Again it is said that the prior parts of the will show that when the testatrix desired to make a division per stirpes she knew how to do so, and almost invariably used the words “ one portion ” or “ one share,” and if that had been her intention in regard to the residue she would have been likely to use the same phrase. But that is a two-edged argument, for the same parts of the will show also that when she intended a per capita division, she made it plain by the expression “ share and share alike.”

On a general view of the whole will we see no ground on which to give the word “ between ” any other than its proper meaning, and according to that the grandchildren of Gen. Ihrie are one class, taking half, and the children of Ferdinand Poree another class taking the other half of the residuary estate.

As wills, like contracts, are to be construed according to the. actual intent of the maker, as ascertained from his words, precedents are of comparatively little value, but illustrations in accord with the views herein expressed will be found in Young’s Appeal, 83 Pa. 59; Osburn’s Appeal, 104 Pa. 637, and Green’s Est., 140 Pa. 253.

Decree affirmed.

Mr. Justice Green dissents.