Wright's Estate

Opinion by

Porter, J.,

The testator executed his will on June 28, 1886, and died on June 7, 1890, having in the meantime executed twelve codicils, several of which bear upon the rights of the parties to the present controversy, and it is not sur-, prising that the complicated series of codicils has led to litigation. The will and its voluminous codicils will appear in the report of the case and it is not necessary that we recite them at length in this opinion. This is the fifth account of the trustee of the bequest of $150,000 in the ninth clause of the will, subsequently modified by sundry codicils, under which the parties entitled to the income, during life, were Josephine W. Rulon, one-fifth; Mary L. Kennedy, formerly Koons, one-fifth; Robert J. W. Koons, one-fifth; Louise Wernle Werner, one-fifth; Mary R. Shaw Heritage, one-fifteenth, and Frances E. Koons, two-fifteenths. Under the provisions of the trust, as originally created by the ninth paragraph of the will, the one-fifth interest of Louise Wernle Werner in the fund was subject to the following limitations, viz: one-fifth of the net income was to be paid to her quarterly during her life, “and issue shall take the share of its deceased parent; but in case of any of the above dying without leaving issue, or without issue living to the age of twenty-one years, then such a one’s full one-fifth' of the principal shall be paid over absolutely and divided equally among the several religious and benevolent institutions hereinafter named or intended so to be; but when either of said five has died and all-of his or her said issue living has reached said full twenty-one years of age, then the entire one-fifth of the principal which was set over for such a one, shall be paid over to, or for, such issue or their representatives absolutely and free from all trusts whatever.” Louise Wernle Werner died without leaving issue and this account was thereupon filed in order that the court might determine the distribution of the one-fifth of the fund of which she had during life received the income. The religious and benevolent institutions, of which this appellant is one, claim the one-fifth of the fund under the bequest of the remainder, contingent upon the death of Louise Wernle Werner without issue, under the ninth clause of the will. The appellee asserted that the bequest of that contingent remainder had been revoked by the codicils of the will hereinafter referred to. The court below sustained the contention of the appellee and awarded the fund to the appellee as trustee under the trust created residuary legatee by the first codicil, and from that decree we have this appeal.

It is necessary here to briefly refer to those provisions of the will, the subsequent treatment of which in the various codicils, may afford light in ascertaining the intention of the testator with regard to the ultimate disposition of the fund with which we are now dealing. The sixth clause of the will bequeathed an annuity of $80.00 to each of four persons, and the fourth paragraph of the first codicil directed that a principal of $1,250 be set aside for each $40 of said annuities, respectively, to secure payment of the same. The remainder in the principal sum thus set aside to secure the annuities was not expressly bequeathed to any one and would have fallen into the residuary estate, but by item seven of the fifth codicil it was expressly provided that the income of that fund should be paid to Louise Wernle Werner during the period of ten years and at the expiration of that period, or upon her death if she died prior thereto, the principal should be paid to the religious and benevolent institutions with which we are now dealing. The seventh clause of the will bequeathed the sum of $40,000 to the trustee, the income to be paid to Prances E. Koons during her life, and after her death the principal to be paid and divided equally among the same religious and benevolent institutions. This trust fund and the ultimate disposition of the principal thereof was dealt with in the fourth codicil of the will in the manner to which we shall hereafter refer. The ninth paragraph of the will we have above referred to; that paragraph as written in the will bequeathed the sum of $150,000 in trust, one-fifth of the income thereof to be paid to Josephine W. Rulon, one-fifth to Mary L. Koons, one-fifth to Robert J. W. Koons, one-fifth to Mary R. Shaw Heritage, and one-fifth to Louise Wernle (who subsequently married Bernard Werner), during their respective lives, with remainder to their respective issue living until twenty-one years of age; upon the death of any of said parties without issue-the one-fifth share of the person so dying should be paid to the religious and benevolent institutions and, finally the testator bequeathed all his residuary estate to the said religious and benevolent institutions. It is true that in the seventh and ninth paragraphs of his will the testator did not write out at length the names of the many charities which he intended to become the objects of his bounty; he, in those paragraphs, merely identified such societies as “the several religious and benevolent institutions hereinafter named or intended so to be.” There can, however, under the wording of the will, be no doubt that the religious and benevolent institutions which he referred to in the seventh and ninth paragraphs of the will were the same institutions, the names of which he wrote out at length in the residuary clause of the will. The printing of the names of those institutions occupies an entire page in the paper book and it was not necessary that the testator should add to the bulk of his will by repeating again and again the names of the institutions which his will as written so clearly identified. The fact that the names of the institutions were not repeated in the seventh and ninth paragraphs of the will did not change the character of the interests which passed to the institutions under those paragraphs. The benevolent institutions took a vested remainder in the principal of the trust fund of $40,000, of which Frances E. Koons was to receive the income during life, under the seventh paragraph of the will: under the ninth paragraph of the will they took an estate in remainder in each one-fifth of that trust fund, after the death of the life tenant, contingent upon the death of that tenant without leaving issue. As to these estates in remainder it mattered not whether any residuary estate remained after payment of the general legacies and provision for the various trust funds. We have then bequests to the charities of three distinct interests, a vested remainder in one fund, a contingent remainder in another fund, to take effect after the termination of life estates, and an absolute devise of the residuary estate to take effect in possession immediately upon the distribution of the testator’s estate.

When we come to consider the effect of the codicils upon these several bequests to the charities contained in the will it is well to bear in mind the fundamental distinction between the nature of a codicil and a later will. The later will works essentially a revocation, while the codicil is a confirmation except as to the express alterations which it may contain. . The general result of the' authorities on the subject is, that notwithstanding a codicil, the provisions of the will are to stand, unless in order to effect the purposes of the codicil, it is absolutely necessary that the provisions of the will shall give way: Spang v. Hill, 2 Woodward 45. “Where it is possible to construe the codicil so as to give effect to all- the provisions of the will, it certainly should be done”: Sigel’s Est., 213 Pa. 14; Cassidy’s Est., 224 Pa. 199; Stevenson v. Grant, 2 Wharton 278. Let us now take up in order the codicils which have any bearing upon the question presented.

The provisions of the first codicil which are here material are as follows: “As soon as the totals given to the' various charities, constituted residuary legatees in will June 28, 1886, shall sum up the total of $1,000 to each of said institutions entitled then to an equal share then no more shall be paid to those institutions, unless as hereinafter mentioned: but I hereby direct my executor and trustee to set apart and constitute a trust as residuary legatee for everything not otherwise provided for, nevertheless in trust for the benefit of my sister Prances E. Koons and her issue.” The codicil then directs that one-half of the income be paid to Prances E. Koons semiannually and one-sixth of the income to each of her three children, and after her death the income to be paid to her three children or their issue in the same way, “as long as the law will allow,” issue in all cases taking parent’s share, with cross remainders, “but in case Prances E. Koons and her three children and all her and their issue shall be deceased before becoming-entitled to this property and before the legal time for the entail has closed, then the property now spoken of is to be paid to the various charitable institutions as mentioned and provided for in will of June 28, 1886.” This codicil further provides that the sum of $10,000 shall be set apart in trust for Louise Wernle, the income to be paid to her during life, and in case of her marriage she to receive $4,000 of the principal, and the remainder to be paid to her children. This codicil in express terms refers to the charities as residuary legatees. It does not. give to the charities a general pecuniary legacy of $1,000, it manifestly refers to a fund which Avas uncertain in amount and which might or might not be sufficient to pay the charities the sum of $1,000 each. If that had been the only codicil of the will, it would then seem to be clear that the charities could not have asserted the right to receive the sum of $1,000 each as a definite pecuniary legacy. The charities would have had' to wait until everything otherwise provided for in the will had been set apart before they would have been entitled to anything. It seems, further, to be clear that “the property now spoken of” to which the codicil refers was property which was to yield to the trust fund, “constituted a residuary legatee,” a present income which was to be paid to the beneficiaries under it semiannually. We cannot, therefore, say that in order to effect the purpose of this codicil it is necessary that the provisions of the ninth paragraph of the will, giving to the benevolent institutions a contingent remainder in the fund of which Louise Wernle Werner received the income, should be stricken down. The effect of that codicil was to give to the benevolent institutions the right to presently receive, upon the death of the testator, the sum of $1,000 in case the residuary estate was sufficient to pay that amount to each of said institutions, and in case there was a surplus after paying that amount then all the property not otherwise provided for in the will was to go to the trust, which was constituted the residuary legatee. This codicil did not revoke the bequest to the charities of the vested remainder under the seventh clause of the will nor did it revoke the contingent remainder which the institutions took under the ninth clause of the will. That the testator so understood the matter is demonstrated by the fourth codicil, which was executed June 25, 1889.

In the fourth codicil the testator first reduced the principal of the trust fund, of which Frances E. Koons was to receive the income during life, as provided in the seventh paragraph of the will, from $40,000 to $30,000, and, after stating that the principal of the fund was by his will directed to be paid to various benevolent and religious institutions after her death, expressly provides that the net income, after her decease, be divided equally between her children, and after the decease of either of the three to the issue of the person deceased, with cross remainders, and after the children surviving shall all have attained the age of twenty-one years the principal be divided equally between them. This effectually and expressly- revokes the bequest to the institutions of the vested remainder in the $40,000 trust fund provided for in the seventh item of the will. It clearly indicates that the testator had thought down until that time that his will gave to the charities a vested remainder in that trust fund. If he had intended, by the first codicil, to revoke the bequest of that vested remainder, why did he deem it necessary to revoke it over again? The codicil does not, however, stop there, it expressly and distinctly deals with the contingent remainder, given to the institutions, under the ninth clause of the will, upon the death of the life tenants without leaving issue. The language is significant: “I direct that the various sums of money directed in article nine of the aforesaid will to be held in trust for the equal benefit of niece Josephine W. Rulon, niece Mary L. Koons, and nephew Robert J. W. Koons, and for their issue, shall be divided, both income and principal, in the same manner and on the same principles as are herein above directed for the disposal of the aforesaid trust for Frances E. Koons after her decease. And furthermore, all the reversionary rights given to institutions in the aforesaid will, reversionary rights to things and sums therein bequeathed to or in trust for Frances E. Koons, or her issue, are hereby revoked, as it is my intention that as long as there is any issue surviving of Frances E. Koons, or her offspring, everything that I bequeathed in the will of June 28, 1886, and in this codicil to her or them shall go no otherwise than to her issue so long as the law will allow.” This certainly makes it very clear that the testator did not believe that he had by the first codicil revoked what he calls “the reversionary interests given to institutions” in the will, not even in sums therein bequeathed to Frances E. Koons or her three children named. When, in this fourth codicil, he expressly deals with those specific “reversionary rights,” which passed under the ninth article of the will, he confines the revocation to the reversionary rights in things or sums bequeathed to Frances E. Koons or her children. This gives rise to a clear implication that it was not his intention to revoke the contingent interest which he had given to the religious and benevolent institutions in the one-fifth of the $150,000 trust of which Louise Wernle Werner was to receive the income during life. The testator was not, however, disposed to leave this a mere implication, as the following paragraph of this codicil discloses.

That paragraph begins by directing that article nine of the will, which constituted the $150,000 trust, be altered so that Mary R. Shaw Heritage and her issue shall have an interest of only two-fifteenths (instead of one-fifth) in the trust constituted in said article nine and that Frances E. Koons and her issue shall have an interest of one-fifteenth in said trust; thus taking from Mary R. Shaw Heritage and her issue a one-fifteenth interest in the trust fund and giving it to Frances E. Koons and her issue. The paragraph then proceeds: “But the interest of all the. other parties constituted by the trust in article nine of my will are to remain unchanged by this clause, as this clause only affects Mary R. Shaw Heritage and Frances E. Koons and their respective issue.” This clearly indicates that it was the intention of the testator that article nine of the will should be changed only to the extent which he specifically provided that it should be changed. The testator in this paragraph then deals with the first codicil, of January 20, 1888: “I hereby alter codicil of January 20, 1888, as follows: I direct when the amount paid to each of the various religious and benevolent institutions (mentioned in codicil of January 20, 1888, or referred to there or mentioned in will of June 28, 1886) shall amount to $800 each, then no more shall be paid to them, but the residuary estate not otherwise bequeathed or devised shall then be held in trust for or paid to Frances E. Koons and her issue, as provided in codicil of January 20,1888. Provided, however, that this limitation shall not apply to legacies coming to institutions after the decease of legatees, or their issue, other than Frances E. Koons and her issue, and when it is specifically provided that in case of the death of said legatees (other than Frances E. Koons or her issue) their share shall then go to the religious or benevolent institutions.” This seems to establish that when the testator said that only a limited amount should be paid to each of the various religious and benevolent institutions, $1,000 in the first codicil and $800 in the fourth, and “then no more shall be paid to them,” which quoted words he uses in each of the codicils, he intended to deal only with the amount which they were to receive out of the residuary estate, and did not intend to revoke the bequest to the institutions of the contingent remainder in the principal of the one-fifth of the $150,000 fund, the income of which was bequeathed to Louise Wernle Werner during life.

We now come to the fifth codicil, dated September 4, 1889. The first item in that codicil provides: “I hereby direct that only $500 each shall be given to each of the various religious, benevolent and charitable institutions made legatees of larger amounts in my will and codicils, except that the legacy to the Bustleton Methodist Episcopal Church......shall be $1,000.00, and I bequeath to Saint Luke’s Protestant Episcopal Church...... $500.00.” This manifestly refers to legacies given directly to the charitable institutions, and, in the absence of other provisions, payable upon the death of the testator. The sixth item of this codicil contains the following provisions: “I direct that (excepting to the Bustle-ton Churches above mentioned) all legacies or bequests to or for religious, benevolent or charitable institutions shall be suspended and invested and held in trust by my executors for ten years after my decease,......for the following uses, intents and trusts, namely, to pay the income thereof semi-annually, to Louise Wernle, and ten years after the settlement of my estate or after her decease, if she decease in less than ten years after the settlement of my estate, then to divide the principal (five hundred dollars each) to each of the aforesaid religious, benévolent and charitable institutions.” This makes it clear that the legacies to the charities, with which the testator is now dealing, are legacies which, in the absence of the provisions of this item would have become payable upon his decease, or the settlement of his estate. The settlement of his estate which he refers to is manifestly the primary distribution of his estate and the allotment of it to the various trusts which he created, and was not intended to disturb the ultimate distribution of the principal of the various trust funds for which he had provided. That it was not his intention to absolutely limit the amount which each of the charities should receive to the sum of $500, from all sources, is indicated by the seventh item of this codicil, in which he directs that the principal of the fund set aside to provide for the payment of the annuities bequeathed to several persons- by the sixth item of the will shall, upon the death of the annuitants be added to the trust fund provided for in the sixth item of this codicil, which the testator calls “the benevolent fund,” of which the income was to be paid to Louise Wernle Werner for ten years, and the principal at the expiration of that time, or upon her death if she died within that period, was to be paid to the religious and benevolent institutions. No disposition of the principal of that fund had been made in the will or any prior codicil. The eighth item of this codicil provides that the legacies to or in trust for Prances E. Koons, Josephine W. Rulon, Mary L. Koons, Robert J. W. Koons, Louise Wernle Werner (excepting her interest in the benevolent fund hereinbefore mentioned), and for Mary R. Shaw Heritage shall first be set apart in full. “But if the estate shall not be sufficient to pay these in full, then they shall be established and provided pro rata; next the principals which I have set apart for smaller annuities (naming the annuitants) shall be provided for; next the legacies ultimately for religious, benevolent and charitable institutions, but for Louise Wernle Wright (subsequently Werner) for the next ten years after my decease, shall be provided for.”

This provision establishes beyond any doubt that it was the intention of the testator that the “benevolent fund,” out of which the religious and charitable institutions were each to receive $500 and the income of which Louise Wernle Werner was to receive for ten years, was to be provided for immediately upon the settlement of the estate, but it was to receive nothing until after funds had been set apart to fully establish the various trust funds provided for in the will, including that in favor of Louise Wernle Werner and others, the terms of which were defined by the ninth article of the will. This legacy of $500 to each of the religious and benevolent institutions was not to go into the “benevolent fund” until all other legacies given by the will had been provided for;- it was in its nature a bequest of residue. We find in this codicil nothing which, in the light of the authorities hereinbefore referred to, would warrant us in holding that it clearly or by necessary implication, discloses an intention upon the part of the testator to strike down the contingent remainder in the principal' of the fund of which Louise Wernle Werner received the income during her life, under the trust created by the ninth article of the will. The codicil is careful to say that the legacies to or in trust for the parties who were the beneficiaries under that particular trust shall have precedence in the distribution of the estate, but it does not intimate an intention to make any change in the conditions or limitations of the trust, either as to the income or the ultimate disposition of the principal.

The eighth codicil is the only one remaining which refers to the disposition of the trust fund of $150,000, created by the ninth article of the will. “I hereby revoke from that large trust for several parties in my will another one-fifteenth from Mary E. Shaw Heritage, so that there shall only remain of and in that trust one-fifteenth interest for her and her issue, and the one-fifteenth hereby revoked from her interest I hereby give and bequeath to my executors in trust for Prances E. Koons' and her issue as long as the law will allow, and as provided in other plans for the children of Prances E. Koons and their issue; and when the required time or circumstances arrive the principal shall be divided as directed in said trust.” There is here nothing whatever indicating an intention to revoke the bequest to the religious and benevolent institutions of the contingent remainder in the principal of the sum of which Louise Wernle Werner was to' receive the income during life. It seems rather to indicate that when the required time or circumstances arrive the principal of the trust fund is to be divided as directed by the will, although it may be that those words should be held to refer to the one-fifteenth interest in that fund which is by this codicil transferred from Mary E. Shaw Heritage to Prances E. Koons and her issue.

We are of opinion, after mature consideration of this will and its complex combination of codicils that the bequest to the religious and benevolent institutions of the contingent remainder in the principal of that one-fifth of the trust fund provided for by the ninth article of the will, of which Louise Wernle Werner received the income during her life, was not revoked by any of the codicils, and that this appellant is entitled to receive its proportionate share of that principal. It is important here to observe that the religious, benevolent and charitable institutions to which legacies are given by the various codicils of the will, but which were not named in the original instrument did not become entitled to any interest in the fund with which we are now dealing.

The decree is reversed and the record is remitted to the court below with direction to distribute to the appellant its proportionate share of the fund involved, as indicated by this opinion. The costs of this appeal to be paid by appellees.