Chandler v. Woelpper

Opinion,

Me. Justice Mitchell :

It is perfectly clear that the will of David Woelpper, Sr., creates contingent remainders in the shares left to his daughters, determinable on the death of each respectively, without issue. The language of the will is, “ And from and immedi- ■ ately after the decease of my said daughters respectively, and as that event happens, I give and bequeath the estate and property of the daughters dying, which shall then be held by the said trustee under this my will, to be equally divided among the surviving brothers and sisters, and the lawful issue of such as may be dead (if any);.....provided, however, that if my said daughters, or either of them, should die leaving lawful issue, the share' of such daughter, so dying, shall go to and be equally divided among such issue and the lawful issue of such as may be dead.”

The primary and controlling gift here is to the daughters for life, and upon their deaths, to their issue if they should leave any. “ Die leaving issue ” naturally and necessarily means issue surviving' at the time of the daughter’s death, and the previous devise in the same clause to the “ surviving brothers and sisters ” must refer to the same time, for then onljr can the contingency on which alone they are to take, to wit, the death of the daughters without leaving issue, be determined. This would be beyond question if the clause were written in its natural order, giving the share to the daughters for life, and on their deaths to their issue, but in case they should die without leaving issue, then over to the surviving brothers and sisters. But the order being inverted, and the devise over to the surviving brothers and sisters being interpolated between the devise to the daughters and that to their issue, gives rise to the argument that the remainders to the brothers and sisters are vested in those surviving at the death of the testator, subject to be divested by the birth of issue to the daughters. But if the remainders are vested in the brothers and sisters at the death of the testator, and divested by the birth of issue, then they must re-vest in the brothers and sisters on the death of the issue in the mother’s lifetime, and be again divested by the birth of other issue, and so be tossed to and fro like shuttle-cocks, as successive children may be born and die. But even if this inconvenient shifting could be maintained, is the technical argument technically sound ? The remainder is not to issue born to the daughters, but issue left surviving at their death. This remainder is incontestably contingent. But if the remainder was vested in the brothers and sisters first, and is then divested by the contingent remainder in the issue after their birth, where is the remainder to vest during the joint lives of the daughters and their issue ? Not in the issue certainly, for their estate is contingent on surviving their mother. Nor can it be in the brothers and sisters, for the living issue stands between them and the devise over, and their estate is contingent on the now existing and future born issue dying before their mother. In fact, the remainders are not vested at all, but contingent, as to both the issue and the brothers and sisters; and where the rest of the fee is, whether in nubibus, or in gremio legis, as the early lawyers called it, or in reversion in the heirs of the testator, as Fearne maintains (2 Sharswood’s Blackstone, 1.07 n.)y is not a practical question which we need discuss here.

Without going into such subtleties it is entirely clear that the principal objects of the testator’s bounty as to these shares, were his daughters and their issue, and the time he had in mind when the shares should possibly go to any one else, was the death of the daughters and it was with reference to that time that he designated the surviving brothers and sisters as the ultimate devisees.

This being clearly the actual intent of the testator, what is in the way of holding it to be also the legal intent of his language ? ‘ It is said that there is a settled rule of interpretation that where land is devised for life with a remainder over, whether to persons nominatim, or to a class, it will vest in the objects to whom the description applies at the death of the testator, and the word “ surviving,” when used in the description refers to the period of the testator’s death.

Is there any such rule settled in the sense that" it must be unbendingly applied to all cases? Has any phrase or description of persons acquired a. set and absolute meaning, that must be conclusively presumed and adhered to, without regard to the context, or the circumstances, or the actual intent of the testator ? If so, it is a clear perversion of fundamental principles, and the grounds for maintaining it should be strong indeed.

In the construction of wills the great general and controlling rule is that the intent of the testator shall prevail. And by his intent is meant his actual intent. It is often said, as in the language of Weidman’s App., 42 Leg. Int. 338, quoted by our brother Greek in Hancock’s App., 112 Pa. 532, and cited by appellant, “ The question in expounding a will is not what the testator meant, but what is the meaning of his words.” But by this it was never intended to say that the testator’s meaning when apparent can be disregarded, but, that it cannot be got at aliunde, by what he might have meant, or even what under the circumstances perhaps he would have meant, but only by what he said. The search is confined to his language, but its object is still his meaning.

With the desire to reduce to a minimum the perplexity and uncertainty inseparable from the subject, courts have established certain more or less artificial and arbitrary canons of construction, by which certain forms of expression are presumed to have certain meaqings, and in doubtful cases these presumptions are held to be decisive. But all of these canons are subservient to the great rule as to intent, and are made to aid, not to override it. As in all such cases, care is required that tools shall not become fetters, and that the real end shall not be sacrificed to what was intended only as the means of reaching it.

The canon relied on by the appellant is, as already said, that where there is a devise for life with remainder over to survivors, the word survivors shall be taken to refer to the period of the testator’s death. Three cases are specially cited to maintain the applicability of tins rule to the present will: Johnson v. Morton, 10 Pa. 251; Ross v. Drake, 37 Pa. 375; and Barker’s App., 2 Cent. R. 282.

Johnson v. Morton is an excellent illustration of the rule, and of the principles on which it should be applied. After discussing the English cases, and the then comparatively recent stand made by Sir John Leach in Cripps v. Wolcott, 4 Madd. 11, for an intelligent application of the rule on principle, and not blindly and indiscriminately on authority to all cases, Rogers, J., concludes to follow the older precedents, yet ho does it expressly on the ground that there was no clear intent of the testator to the contrary. “ Although we believe the general rule to be, that the words of survivorship must be referred to the death of the testator, whether the gift is immediate, or the limitation is after a prior life or particular interest carved out; yet that general intent may be controlled by particular expressions in the will, indicating a contrary intent. I had some doubt whether that was not the case here ; but on consideration have come to the conclusion that it differs in no respect from Rose v. Hill, 8 Burr. 1881, where, in a case .nearly similar, the survivorship was referred to the death of the tesl ator.”

Ross v. Drake, though a stronger case in favor of the application of the rule, is not essentially different in principle. The testator gave a sum of money to the use of his son John for life, with remainder to John’s surviving children, but with a proviso, that if John should so elect, the money was to be expended for a tract of land for his use for life, with remainder as before. The court held that the rule laid down in Minnig v. Batdorff, 5 Pa. 508, applied, and the case must be treated as a devise of realty, and that the remainder vested in John’s children at the death of the testator. But that this was not intended to be the peremptory application of the rule, irrespective of the intent of the testator, is clear from the language of Strong, J., who says: “Such a remainder vests in the objects to whom the description applies at the death of the testator, subject to open and let in others after born. A testator may indeed direct otherwise, and it is supposed he did so in this case by limiting the remainder to the surviving children of John,” etc. He then proceeds to discuss the period to which the word surviving relates, and concludes that under the cases in England and this state, citing •specially Johnson v. Morton, the period is the death of the testator.

Barker’s Appeal is a very recent case, decided January 4, 1886, and meagerly reported. It does not call for any extended notice. The opinion of the court below, affirmed per curiam, is that, “it is evident there is nothing in this clause of the will showing a manifest intent that the word surviving should be otherwise applied, and therefore it refers to the death of the testator.”

There are numerous other cases more or less closely in point, but these have been selected especially by the plaintiff in error, and are as strong as any of their class. It may well be doubted ■whether one or more of them has not, in the desire already spoken of to reduce the uncertainties of the subject to a minimum, pushed the application of the set' general rule up to or beyond the true bound; but the strongest and most emphatic of them has stopped short of deciding that the rule, declaring the presumed intent of the word, surviving, to apply to the time of the testator’s death, shall override the plain actual intent of the testator to refer it to another period. Even strict technical terms, words of art which are edged tools dangerous in unskilled hands, will be taken out of their technical meaning by a clear intent of the testator to use them in a different sense; .and it is not tenable for a moment that any more unyielding force should attach to words or phrases like “surviving brothers,” etc., which are not technical words at all, and have a set presumptive meaning as to time, only because experience has appeared to indicate that they are most commonly used with reference to that period. Giving them a quasi technical meaning for the purpose of aiding in the ascertainment of intention, is far short of making them a Procrustean bed on which every unfortunate testator’s will shall be stretched out of its proper shape or shorn of its members, to make it. conform to the arbitrary standard. . .

It is not therefore' necessary to consider how far reported decisions would be binding' precedents, without reference to actual intent, in oases exactly parallel. No case has been cited in which the language is exactly like the present, or even closely similar, if we take it with its context just as it is written; and, taking the cases therefore as precedents, not for the meaning of the exact language of Woelpper’s will, hut for the principles of construction by which his meaning is to be ascertained, we concede them all their legitimate authority in conceding that they establish the general rule that the phrase “surviving brothers and sisters ” means surviving at the death of the testator, and that it shall be so construed unless it clearly appears that the testator meant it to refer to a different period. As already shown, the testator in the present ease plainly meant to refer to the time of his daughter’s death, and his actual intent being thus entirely clear, there is no room for any presumption, and the cases establishing that presumption have no application. “ All mere technical rules of construction,” says Shakswood, J., in Reek’s App., 78 Pa. 435, “must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law, not to attempt to construe that which needs no construction.”

The learned judge below followed the true intention of the will, and the decree must be affirmed.

Decree affirmed.