Estate of McAfee , 463 Pa. 250 ( 1975 )

OPINION

JONES, Chief Justice.

Annie McAfee died at the age of eighty-two on March 28, 1972, leaving a holographic will dated November 28, 1964. Testatrix’s will provided as follows:

“This is my wish and desire all my personal and realstate [sic] property I leave to my children to dispose of as they see fit.

After Thomas my son has been libiraly [sic] payed [sic] for careing [sic] for me the remainder devided [sic] among the other children. In case any of them become deceased before me their children to claim his or her share.”

At the time the testatrix executed her will, five of her six children were living. The sixth child, George J. McAfee, had died on November 5, 1948, sixteen years before the execution of the will. George J. McAfee left surviving three children, appellants in this case, who were living at the time of testatrix’s death.

At the audit of the first and final account of testatrix’s estate, appellants alleged, inter alia,, that they had been improperly excluded as legatees under the will, the entire estate being divided among the five surviving children of the testatrix. A hearing was held at which the auditing judge concluded that the testatrix did not intend to include appellants as beneficiaries of her estate. Exceptions followed and subsequently were dismissed. This appeal followed.

The question raised on appeal is a narrow one. May the grandchildren of the testatrix, children of a son who died prior to the execution of the testatrix’s will, take the share of their deceased father by representation per stirpes?

It is well settled that in interpreting a will, the controlling element is the intention of the testatrix. Hamilton’s Estate, 454 Pa. 495, 312 A.2d 373 (1973). In Houston Estate, 414 Pa. 579, 201 A.2d 592 (1964), we said:

“It is now hornbook law (1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, or the testator’s intent is for any reason uncertain.” (Citation omitted.) 414 Pa. at 586, 201 A.2d at 595.

In the instant case, both counsel for the estate and counsel for appellants contend that the will is unambiguous and that no reference need be made to technical rules of construction. We agree.^*

In Schappell Estate, 424 Pa. 390, 227 A.2d 651 (1967), this Court permitted the issue of a child who had died prior to the execution of the testator’s will to take under the will. The testator’s will provided:

“ . . . I give, devise, and bequeath to my dear wife Stella J. Schappell, however should my wife Stella J. Schappell predecease me in death I then give, devise and bequeath the same to my children, same to be divided equally share and share alike, and if any of my children shall predecease me in death, his or her share shall be divided equally amongst their issue.” 424 Pa. at 391, 227 A.2d at 652.

The McAfee will is the substantial equivalent of the Schappell will, the words in Annie McAfee’s will indicate that the testatrix’s intent was to provide for an equal distribution to each of her children with the exception of Thomas, who was clearly not to benefit from the residual distribution. Thus, the testatrix left on a per capita basis, as did the testator in Schappell’s Estate, all her real and personal property for the benefit of all her children. The words used in this section of the McAfee will do not limit the members of the class of children. Eather, that section reflects the testatrix’s intent that her child or, if they die, their children will not be restricted in the disposition of her assets. Thus, consistent with Schappell, testatrix’s deceased son, George, is included within the class of children.

As in the Schappell will, testatrix next provided on a per stirpes basis for the benefit of the family line of her children who predeceased her but who left children surviving, to continue the existence of their geneological branches. It is clear that it was the testatrix’s intent that the appellants take their father’s share by representation and per stirpes. The words of the McAfee will, “ . . .in case any of them become deceased before me,” are equivalent to the language used in the Schappell will, “ . . .if any of my children shall predecease me.” (Emphasis added.) Here, since George fits within that class of children who predeceased the testatrix, his children take by representation and per stirpes under the will. This interpretation produces virtual equality, while the result of the Orphans’ Court produces gross inequality — a result to be avoided if possible. Furthermore, if there is any doubt the interpretation which gives perfect equality and which most nearly conforms to the intestate laws is preferred. 424 Pa. at 393, 227 A.2d at 653; see also Newlin Estate, 367 Pa. 527, 80 A.2d 819 (1951); Laughlin Estate, 354 Pa. 43, 46 A.2d 477 (1946).

A testatrix, of course, is free to confer her bounty unequally or discriminatorily, but unequality or discrimination will not be presumed unless the intention to do so is manifest. Schappell Estate, 424 Pa. 390, 227 A.2d 651 (1967), and Grothe’s Estate, 229 Pa. 186, 78 A. 88 (1910).

Decree reversed and case remanded for an accounting consistent with this opinion. Parties to bear own costs.

O’BRIEN and ROBERTS, JJ., concur in the result. MANDERINO, J., filed a dissenting opinion in which EAGEN, J., joined.

* Appellee cites for consideration the following proposition:

“[W]hen the gift is to a class, issue will not take the ancestor’s share unless the ancestor was living when the will was written or was born thereafter prior to the Testatrix [sic] death.” Appellee’s Brief p. 4, citing Commissioner’s Comment to Wills Act of April 24, 1947, P.L. 89, 20 P.S. § 180.14(8). Since in the present case we find the testatrix’s intention unambiguous, there is no need to rely upon this technical rule of construction which was originally laid down in Christopherson v. Naylor, 1 Mer. 321, 35 Eng.Rep. 693 (Ch.1816),

At any rate, an examination. of our prior cases will demonstrate that where the will is unambiguous we have only reached the Christopherson result where the words of the will specifically indicate an intent to exclude the heirs of a predeceased child. Thus, in Barbara Herr’s Estate, 28 Pa. 467 (1857), this Court reached the Christopherson result and excluded an heir who was attempting to take by representation the share of a member of the class who was deceased when the will was written because the will contained an independent provision in the heir’s favor, specifically stated to be his share “in Full.” See also Harrison’s Estate, 18 Pa.Super. 588, aff’d, 202 Pa. 331 (1902), and Kessler’s Estate, 288 Pa. 91, 135 A. 618 (1927). A similar result was reached when a testator, in describing a class, specifically referred to living members of that class. Estate of William Morrison, 139 Pa. 306, 20 A. 1057 (1890).

For examples of cases where the heirs of a predeceased child were permitted to take, see Golden’s Estate, 320 Pa. 4, 181 A. 484 (1935), Sorver v. Berndt, 10 Pa. 213 (1849), and Long v. Labor, 8 Pa. 229 (1848).