Laughlin Estate

I cannot agree with the opinion of the Court. I am certain it was error to apply the doctrine of hotchpot in distributing this estate.

There is involved construction of a part of Section Two of the will of Teresa Laughlin, who died in Philadelphia, on January 16, 1941, leaving three children to participate in the distribution of her estate.

The learned auditing judge, in his adjudication and decree nisi, applied the doctrine of hotchpot as the method of distribution. This was objected to by two of the children, and in passing on their exceptions the six judges of the Orphans' Court of Philadelphia County were evenly divided regarding application of that doctrine. This resulted in affirmance of the decree of the auditing judge, whereupon separate appeals were taken to the Superior Court, which reversed unanimously, holding that that doctrine has no place in this case. From the judgment of that court we granted these appeals.

The first impression gained from reading the will of Teresa Laughlin is that it was carefully prepared by a lawyer. It is dated December 28, 1937, and after providing for the payment of her debts and funeral expenses, says:

"SECOND. All the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situate, I give, devise and bequeath as follows:

"To my Trustee, hereinafter named, one third thereof IN TRUST, however, for the uses and purposes as hereinafter set forth for the benefit of my son, GEORGE LAUGHLIN and his family; PROVIDED, however, that inasmuch as my son, GEORGE LAUGHLIN, the beneficiary of this Trust Estate, has received from me during my lifetime sums of money at various times, in excess of amounts given to my other children, I direct that his portion of my estate shall be chargeable as follows:"

She then specified in three paragraphs the charges she wished made against the portion received by George. (1) An amount equal to the carrying charges, taxes and water rents, which she had paid for him while he and his family for twenty-three years occupied without any charge a house owned by her. (2) An amount equal to the taxes and water rents on the same property from the date of her will until her death, and (3) with any sums of money which she may advance to him until her death.

Having so precisely named the charges to be made against the share received by George, she said: "And the Trust Estate,as so diminished, I direct my Trustee to administer as follows:" She then provided for investment of principal, which should include the house occupied by George, and the income to be applied for the support of George and his dependents, in weekly installments of twenty-five dollars.

The next paragraph authorizes the trustee in her discretion to spend all the principal and income on George and his dependents. She then provides that George and his wife shall have the privilege of occupying her house "for and during all their natural lives." And next, that at George's death "the remainder of this Trust fund . . . shall be distributed among his descendants according to the intestate laws of the Commonwealth of Pennsylvania." Then follows this final paragraph of the residuary section:

"And all the remainder of my said residuary estate, I direct shall be divided equally between my son, HENRY LAUGHLIN and my daughter, STELLA M. SHANNON, their heirs and assigns, absolutely and forever."

Henry and Stella were appointed executors, and Stella was also appointed trustee.

At the audit it was agreed that the amount directed by the will to be charged against the portion of the estate received by George was $9,533.09, and the question arose as to how it should be distributed. In his adjudication the auditing judge held that the doctrine of hotchpot applied and ruled that "distribution will be awarded hereunder by treating the advancement as if repayment had been made to the estate, the total then divided in equal one-third shares, and the advancement deducted from the share given in trust for the benefit of George Laughlin and his family." He added the charge against the share of George to the balance for distribution and then divided that balance in three parts. From one of such parts he deducted the charge against George and awarded the balance in trust for George. The other parts were awarded to Henry Laughlin and Stella M. Shannon. Instead of receiving the entire charge against George's share, they were given only two-thirds of it. Their claim for the remaining one-third in equal shares was denied. The net effect of this method of distribution was to release George from payment of one-third of the charge which his mother directed be made against his share, or $3,177.70, and his brother and sister were deprived of this amount.

The learned auditing judge concluded that testatrix did not clearly express the method of distribution she had in mind, and because of uncertainty inequality resulted, and since the law favors equality, and because an heir is not to be disinherited except by plain words or necessary implication, he applied the doctrine of hotchpot which makes for general equality. With his conclusion I cannot possibly agree.

It seems to me the doctrine of hotchpot is entirely inapplicable in this case. Testatrix herself determined that when in clear and unmistakable language, with no confusion of thought, she precisely declared in her will how she wished her estate distributed among her children. No canons of construction are necessary to determine her meaning:Conner's Estate, 286 Pa. 382, 388, 133 A. 545.

Hotchpot is an equitable doctrine intended to bring about equality among heirs. It is a method of distribution by which advancements made to heirs during an intestate's lifetime are treated as if actually repaid to the estate and the total estate, as thus augmented, divided among the heirs, the amount of the advancements being deducted from the share of the one advanced.

We recently said in Smith Estate, 350 Pa. 418, 419,39 A.2d 513: "An advancement as defined by this Court is a pure and irrevocable gift, by a parent in his lifetime, to his child, on account of such child's share of the estate, after the parent's decease: Miller's Appeal, 31 Pa. 337; Long's Estate, 254 Pa. 370,98 A. 1066; Harrison's Estate, 298 Pa. 514, 148 A. 704." Advancements are confined to cases of intestacy except in the event of a will which clearly expresses otherwise or where the donor has died intestate as to part of his property: O'Connorv. Flick, 271 Pa. 249, 253, 114 A. 636; Loesch's Estate,322 Pa. 105, 109, 185 A. 191. Here, therefore, we must look to the will to determine if the doctrine is applicable. The intent of the testatrix, as expressed in her will, must be respected as controlling: Grothe's Estate, 229 Pa. 186, 190, 78 A. 88. It is not our business to rewrite her will or to speculate as to why she preferred her method of distribution. It is our duty to give effect to her intention. To ignore her clearly expressed intention is to make a will for her, and one which she would reject if not powerless to do so. The law does not require her to express any reason for her scheme of distribution. It is sufficient if she express a clear intention of what is to be done with her estate. "If his language is clear it constitutes its own decree of distribution": Hogg's Estate, 329 Pa. 163,166, 196 A. 503, 504.

Anyone reading this testament will be struck by the concern of testatrix for her son George and his family. Almost the whole will is taken up by consideration of them — past, present and future. Only a few lines are given to the other children. For some reason, not expressed, this mother gave preferred treatment to George, for at least twenty-three years prior to her death. This is proven by the fact that during all that long period she gave him a house to live in and herself paid the taxes and water rents; and during the same period she gave him various sums of money; the result being that when she died he owed her $9,533.09, almost twenty-five percent of the total value of her $40,000 estate. It is undisputed that she did not do anything similar for her other children, although not anything indicates a lack of affection for them. It is also clear that testatrix had a strong feeling that she should not prefer one child over the other, and to prevent inequality she provided that the share given George should be "diminished" by the amount he had received in excess of that given the other children.

With the intention to distribute her estate the way she did, we cannot imagine how she better could have done so. If she had wished George to participate in the residue she could have so declared in very few words. It was much more difficult to order the distribution she did than to simply name him with the other children as an equal beneficiary of the residue. Her language is clear and unambiguous; her plan of distribution is sensible and her own; it cannot be fairly said she made any distinction between her children.

In considering this case it seems to have been generally overlooked that while testatrix said in her will that George "has received from me during my lifetime sums of money at various times in excess of amounts given to my other children" she made no charge against his portion of her estate for those sums of money. She only charged against him the carrying charges of the property and "any sums of money which I may advance to him from July 15, 1937, until my decease, an account of which shall be kept by me." It is apparent that during the many years he occupied the house without charge he received in cash sums of money in excess of what the other children received. He was not asked to repay them. Because of this it is unjust to say that George did not get as large a share of his mother's estate as did his brother and sister. The truth is he received more than either. And now by the decision in this case he is released from paying one-third ($3,177.70) of the charge which his mother specifically and in the plainest language directed be charged against his share, and his brother and sister are thus deprived of that amount. I think it was error to apply the doctrine of hotchpot in distributing this estate.

In support of the plan of distribution adopted by the learned auditing judge, there is cited Wagner's Appeal, 38 Pa. 122;McConomy's Estate, 170 Pa. 140, 32 A. 608, and Doverspike'sEstate, 61 Pa. Super. 318, but an examination of those cases shows that there the testators, by express language, directed an equal division of their assets.

I would affirm the decree of the Superior Court.

Chief Justice MAXEY joins in this dissent.