Horwitz v. Norris , 1869 Pa. LEXIS 86 ( 1869 )

Concurring opinion of

Sharswood, J.

— I concur in the decree in this case. But I do not concur in the construction of the will of Mr. Norris, which in any event will give a preference to the descendants of his son Joseph over those of his other sons. I think his intention to make them all equal abundantly appears. Wherever a general plan or design is clearly manifested, expressions carelessly or inartificially introduced, which are inconsistent with it, ought to be disregarded. That general design in this instance was that “ Fair Hill” should go to his sons and their descendants, and “ Sepviva” to his daughters and their descendants. Subject to the power of the first takers to discriminate among their children, he meant that this descent should be to all per stirpes. Courts indeed are always loth to reject any words which can take effect, but it has been repeatedly done wherever it was necessary to carry out the main purpose. “ It has been an established rule in the construction of wills,” says Mr. Jarman, “that where two clauses or gifts are irreconcilable so that they.cannot possibly stand together, the clause or gift, which is posterior in local position, shall prevail, the subsequent words being considered to denote a subsequent intention: Cum duo inter se pugnantia reperiuntur in testamento, ultimumratum est1 Jarman on Wills 411; Lewis’s Estate, 3 Whart. 162; German v. German, 3 Casey 116; Stickle’s Appeal, 5 Id. 234. “ It is clear, however, that words and passages in a will, which are irreconcilable with the general context, may be rejected, whatever may be the local position which they happen to occupy; for the rule, which gives effect to the posterior of several inconsistent clauses, must not be so applied as in any degree to clash or interfere with the doctrine, which teaches us to look for the intention of a testator in the general tenor of the instrument, and to sacrifice to the. scheme of disposition so disclosed, any incongruous words or phrases which have found a place therein1 Jarman 420.

The testator in this ease has explicitly directed, as I read it, that on the death of his son Samuel without leaving children or grandchildren, his one sixth part of Fair Hill “ shall pass to and vest in the trustees herein appointed, subject to the restrictions and for the uses herein declared in like manner as if the same had beer "o,devised in the first instancethat is, as if there had been no for Samuel and his issue, but the estate had been originally devised only in trust for the other sons and their issue: “ for the uses therein declared,” that is, for their children and grandchildren equally, if they make no appointment, as well as for themselves. Had Fair Hill been so devised in the first instance it is unquestionable that upon the death of each son, his children and the issue of his deceased children would have succeeded to his share. Mr. Norris was very careful to provide that his great-grandchildren should succeed to their parents’ shares respectively, and that as to the accrued as well as the original shares. But to make his intention more plain it is added by way of explanation: “ that is to say, the trustees for my said sons Charles, Samuel, Isaac, George and Henry (namely, Charles Pemberton Eox and Doctor George Eox) to take in trust for the use of my said sons Charles, Isaac, George and Henry in equal parts, for the uses hereinbefore mentioned, and the trustees for my said son Joseph (namely the executors of his will) to take, in trust for the like uses that are hereinafter mentioned.” It is remarkable that he does not say in trust for the survivors of my said four sons, or that the trustees of such of them as shall be then living shall take. To assume the power of inserting such words here seems to me as bold an exercise of construction as to strike them from the previous clause. Here is a prior clause inconsistent with a posterior one, and inconsistent with the whole tenor of the instrument. It occurs to me as quite probable that the scrivener in employing in that previous clause the phrases “ such of them as shall be then living,” and “ the then survivors of my said four^ sons,” had reference merely to the fact that the sons were to take for themselves only life estates, and that therefore such as were dead could not properly be named to take the accrued shares; but that he did not mean to exclude the subsequent estates limited to the children and their issue; and these phrases are therefore not repeated when he comes in the following clause to provide that the accrued share shall pass to the trustees in the same manner and on the same uses as the original shares. To attribute to these words an overruling effect in the construction of the will is to render Mr. Norris’s scheme of disposition inconsistent, incongruous and capricious. Such an effect is never to be given where it can be avoided. The courts will lay hold of any expressions which indicate a contrary intention. It is to exert an astuteness not to effectuate but to defeat the general design, to argue that upon the death of the sons respectively the several trusts as to their respective shares ceased to be active trusts. If this were so and the trustees of Joseph, in the case which has occurred, cannot take because in law there are no such trustees, then, inasmuch as Joseph is not named in the clause in which survivorship appears to be provided, but the accrued share is expressly limited to “ the then survivors of my said four sons Charles, Is'Sfec, George and Henry, and the trustees of Joseph,” it would follow as a logical consequence, that Joseph’s share would fall into the residue as a part of the estate devised to persons not in rerum natura, and therefore undisposed of (1 Jarman 587), or descend to the heirs at law. But if the testator knew of such a technical rule, which was by no means well settled at the date of the will, he seems to me to have used language broad enough to forestall its application; for he has declared that in the event of the death of any one of his sons without leaving issue, his one-sixth shall go as it would have done, if it had been originally included in the devise, to the trustees in trust for the benefit of the others only, Charles, Isaac, George, Henry and Joseph, without naming Samuel, the one dying childless.

Such is my interpretation of this will. I cannot pretend that I have confidence in it, because it is opposed to the views of a majority of the court. But I am so strongly persuaded that it is the real mind of the testator, that I am bound to express it. Itl renders his whole scheme of disposition consistent, equal and/ just, and saves him from sinning in his grave, which any man immy estimation does, who makes an unequal distribution of his property among his children or grandchildren, without some good reason for it. Upon the construction as now placed by the court upon this will, it will follow that among the descendants of Mr. Norris — all with an equal share of his blood in their veins — most of whom he had never 'seen, and never could expect to see — without even distinguishing between those who should and those who should not bear his honored name — expressing as to his sons from whose loins they were to spring no preference of one over another— he is yet made arbitrarily and capriciously to include some and exclude others. If it can be supposed that Mr. Norris intended that, although on the death of Samuel his son Charles should take an equal share of that one-sixth for his life, which on his death should remain to his children then living and the issue of such as might then be dead, but that Charles being deceased, if Henry should die without issue, these same children should take nothing of their uncle’s share, — it appears to me very much like throwing his estate in the dark, to fall where by chance it might. Still more incongruous and capricious does it seem in my judgment that while the children of Charles in such an event are to be excluded, the children of Joseph, also deceased, should be admitted, and that if Henry should survive all his brothers, and die without issue, his share shall go to the children of Joseph, to the exclusion alike of the children of Charles, Isaac and George. I would labor with all the little astuteness I possess to escape from such a conclusion. I cannot for a moment believe that Mr. Norris ever could have anticipated this result, or that if it had been explained to him he would not have indignantly repudiated it. He evidently expected that Fair Hill would become a part of the city — would greatly increase in value, and be a princely fortune to the descendants of his sons, even divided amongst them all. He anticipated that the -accrued shares would be large. When he excluded Joseph from any part of his residuary estate, he thought it proper to give a reason for it. That reason was not that he had preferred Joseph or his children in any previous disposition of his will, but because be bad made advances to him in bis lifetime; a reason which shows, if anything was needed to show, that subject to bis intention to give Pair Hill to bis sons and Sepviva to bis daughters and them descendants respectively, bis primary and governing thought was equality among their families.

Thompson, C. J. — I concur in this opinion.