Estate of Nebinger , 185 Pa. 399 ( 1898 )

Opinion by

Me. Chief Justice Steeeett,

This appeal by tlie guardian of the three minor children of Annie H. Beetem, deceased, from the decree of the court below, sustaining exceptions to the adjudication of the auditing judge, involves the construction of the last will of Andrew Nebinger, deceased. After malting pecuniary bequests to individuals and charities the testator says : “ I give and bequeath unto tlie Sisters of the Order of St. Francis the sum of five thousand dollars, to be by them used and expended in the erection and construction of a hospital on tlie lot bounded on the north by Tasker street, south by McKean street, east by Broad street, and west by Nebinger avenue.” He then says: “As to the rest, residue and remainder of my estate, real, personal and mixed, of what nature and kind soever, and wheresoever the same may be at the time of my decease, I give, devise and bequeath as follows : ” Two fourths are then given to his brother Robert absolutely. One fourth is given as a separate use trust to his sister Charlotte C. Sheafer for life; after her decease, one half of this fourth is to he held in trust for her son Andrew N. Sheafer for life, if living, and on his death in trust for his children. He then continues : “As to tlie other half part of said principal, which is the one sixteenth of my residuary estate, to grant, convey and assign the same to the Sisters of tlie Order of St. Francis, their successors and assigns, to be by them expended in the construction and erection of the hospital on the above-mentioned lot of ground.” In the event of the death of his nephew, Andrew N. Sheafer, without issue, this one eighth part of the residuary estate is given to the Sisters of the Order of St. Francis, in language identical with that employed in a similar bequest in the next paragraph of the will, substituting nephew for niece. In tlie next paragraph, — the one in dispute —he saj’B : “ And at and immediately upon the decease of my said sister, then to collect and receive the rents, issues and profits thereof and pay the remaining half part thereof from time to time, — when and as the same shall be got in and received, — unto my niece Annie H. Beetem, daughter of my said sister Charlotte C. Sheafer, for and during the term of her natural life, so nevertheless that the same shall be for her sole and separate use notwithstanding any coverture, and not to be in any way or manner whatever liable to tlie contracts or engagements of any husband, and not to be in any way or manner subject to the control or interference of such husband. And at and immediately upon the decease of my said niece, Annie H. Beetem, if she shall leave any child or children, or lawful issue of any deceased child or children her surviving, then as to the principal of the share in trust, as to the one half part thereof, being the one sixteenth of my residuary estate, to and for the only proper use and behoof of all and every the child or children which she my said niece Annie H. may leave surviving her, and the lawful issue of any of them, who may then be deceased having left such issue, to be equally divided between them share and share alike, such issue of any deceased child of my niece taking however only such part or share as his, her or their deceased parent or parents would have had or taken had he, she or they been living. And in the event of the decease of my said niece without any child or children or issue of any deceased child her surviving, then in trust to grant, convey and assign the whole of the said principal sum which is the one eighth part of my said residuary estate, unto the Sisters of the Order of St. Francis, their successors and assigns to be by them used and expended in the erection of the hospital as above stated.”

The remaining one fourth of the residuary estate is given in trust for another sister, Mrs. Mary A. McMinn, for life, and then to her husband for life, and at their death the sum of $2,000 is directed to be paid to each of three charities, “and the residue thereof unto the Sisters of the Order of St. Francis to be by them used and expended in the erection and construction of the aforesaid hospital building.”

Testator’s niece, Annie H. Beetem, died leaving three minor children surviving her, whose guardian is the appellant. The learned auditing judge held that, under the above quoted paragraph of the will, there was an intestacy as to the one sixteenth part of the residue included but not disposed of therein, and accordingly awarded the same to the testator’s heirs at law; but the court in banc, sustaining exceptions to the adjudication, awarded the fund to the Sisters of the Order of St. Francis, in order to carry out what was held to be the testator’s intention as expressed in his will. In this we think the learned court erred. In our opinion the will is not susceptible of such construction.

When no evidence has been introduced to explain ambiguous expressions, or when no ambiguity exists, the language employed by the testator is our only guide. In this ease, the testator, in terms which call for no construction, disposed of two fourths of his residuary estate absolutely, after specific bequests. The remaining two fourths are separate use trusts for and during the respective lives of testator’s two sisters. After further contingent trusts, and at their termination, the remainders, with the exception of the one sixteenth in question, are left in unequal proportions to several charities. That one sixteenth part of the residue is undisposed of only in the event of a life tenant (Mrs. Beetem) dying with issue then living, — an event which has actually happened. Provision is made for the death of said life tenant, without issue surviving her; in which event, the one sixteenth in question with another equal portion, theretofore settled on the life tenant, passes to the Sisters of the Order of St. Francis.

Appellee’s contention is that the failure to dispose of the one sixteenth in question was an oversight on the part of the scrivener or of the testator, — that the intent of the latter not to die intestate is apparent from the will, and that the bequest of this and another equal portion to the Sisters of the Order of St. Francis, in the event of the life tenant dying without issue, shows an intent that the same sisters should have the portion in question. It is further suggested that they are given the residue of the Mary A. McMinn trust, and that the clause disposing of the one sixteenth held in trust for Andrew N. Sheafer, upon his death, is identical with the clause disposing of the one sixteenth held in trust for Annie H. Beetem, upon her death, with the exception of the omitted portion.

Speaking of the interest of the appellee under these two last mentioned clauses, the learned court below says: “ That its share in the gift to the niece was meant to be identical with the share in the gift to the nephew, is as clear as anything in the compass of probabilities.” This much may be conceded, and yet the appellee may not be entitled to the fund. It is not a question of probabilities, but of intention.

In Jarman on Wills, *856, it is said: “ Conjecture is not permitted to supply what the testator has failed to indicate, for as the law has provided a definite successor in the absence of disposition, it would, be unjust to allow the right of this ascertained object to be superseded by the claim of any one not pointed ont by the testator with equal distinctness. The principle of construction here referred to has found expression in the familiar phrase that the heir is not to be disinherited unless by express words or necessary implication.” In DeSilver’s Estate, 142 Pa. 75, the learned court below used the following language, which on appeal was adopted by this Court: “ The rights conferred by the intestate laws are only taken away by a will which effectually disposes of the entire estate of the decedent; and while a construction is not to be adopted, if it can be avoided, which will lead to an intestacy, interpretation is never to assume the proportion of reformation. The question is confined to the meaning of what the testator has said, and does not extend to the consideration of rvhat he might have said, but did not. The maxim also is fundamental that the heir or statutory distributee will not be disinherited excejit by express words or necessary intendment.”

In this state, the rule, that in the construction of a will of doubtful meaning eveiy intendment is to be made in favor of the heir or next of kin, is of universal application: Clayton v. Clayton, 3 Binney, 486; Brendlinger v. Brendlinger, 26 Pa. 132; Hancock’s Appeal, 112 Pa. 532. As an illustration of the extent to which our courts have gone in the interest of the heir, it is only necessary to refer to Gray’s Estate, 147 Pa. 67, where the cases are reviewed, and it is held that a lapsed legacy passes to the next'of kin, as a case of partial intestacy, although this rule, as stated by our Brother Mitchell, on page 74, “is a sacrifice of the well settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, — shown in the appointment of general residuary legatees, — that the next of kin shall not participate in the distribution at all. The rule is in fact a concession to the set policy of the English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels to the heir and next of kin whenever it can be done.” In Wain’s Estate, 156 Pa. 194, it was held that where part of a residuary legacy is revoked by codicil without a substitutionary gift, the amount passes to the next of kin and not to the other residuary legatees, notwithstanding the rule that the execution of a codicil is a republication of the will.

Appellee contends, however, that Ferry’s Appeal, 102 Pa. 207, and Stevens’s Estate, 164 Pa. 209, are direct authorities for a transposition of the language of the will, by placing the last sentence of the paragraph under consideration before the sentence immediately preceding it, and in that way expressing the meaning for which the order contends. But, in both the cases cited, it is plain that the testator, as stated in the opinion of the court in the former case, “neglected .... to give the natural and logical order of his thought.” In 2 Jarman on Wills, 499, the learned author intimates that the transposition of words or sentences should be limited to cases where a clause or expression is otherwise senseless or contradictory. As an illustration of this, see Sauer v. Mollinger, 138 Pa. 338.

It is practically conceded by the learned counsel for appellee that such construction is permissible only in case of apparent ambiguity due to the language of the will itself. He accordingly argues that “the words, ‘hospital as above stated,’ in the clause as it stands, without supplying the omission, clearly relates to the omitted portion (consisting of over lift)1' words), and shows that it was omitted.” Unfortunately for this contention, the quoted words apply with equal force to the bequest of $5,000 in the earlier part of the will. If the language here used had referred to the hospital “ as above-stated in this paragraph ” or by other words indicated an omission and the character thereof, there would be much force in the suggestion; but as there is nothing here to take the case beyond the limits of mere conjecture, however much we may be satisfied that there was an omission of some sort, we have no means of- supplying it. Without further consideration of the subject, we think the learned auditing judge was right in holding that there was intestacy as to the one sixteenth in question, and, as to so much of the decree as relates to that amount, the same is reversed with costs to be paid by the appellee, and the record remitted for correction in accordance with this opinion.