Brewster Estate

5 Pa. D. & C.3d 311, 1978 Pa. Dist. & Cnty. Dec. LEXIS 390
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 27, 1978
Docketno. 72 of 1977
StatusPublished

This text of 5 Pa. D. & C.3d 311 (Brewster Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewster Estate, 5 Pa. D. & C.3d 311, 1978 Pa. Dist. & Cnty. Dec. LEXIS 390 (Pa. Super. Ct. 1978).

Opinion

SALMON, S.J.,

Specially Presiding,

This case is before us upon a trustee’s partial account and proposed schedule of distribution and exceptions thereto.

Myrtle H. Brewster died May 15, 1973, domiciled in the Township of North Beaver, Lawrence County. Her last will and testament dated August 18, 1971, is duly probated and registered in the Office of the Register of Wills of Lawrence County. [312]*312Therein she left the residue of her estate in trust for the benefit of her daughter, Jean Shumaker, during her hfetime. She directed in paragraph seven that upon the death of Jean the remainder be divided “into five equal parts for the benefit of my two grandchildren and my three great grandchildren as follows:” (Emphasis supplied) 1. One-fifth for Ruth Jane Johnson; 2. One-fifth for Kathleen Gail Szewczyk; 3. One-fifth for Grace Elizabeth Johnson; 4. One-fifth for Lawrence Gregory Szewczyk; 5. One-fifth for Gregory Paul Szewczyk.

At the time of writing her will, at the time of her death, nor at any other time here involved did testatrix have a grandchild or great grandchild named Lawrence Gregory Szewczyk. Testatrix has correctly named all of her other grandchildren and great grandchildren. Her granddaughter Kathleen Gail Szewczyk is married to Lawrence Charles Szewczyk and they are the parents of Charles Gregory Szewczyk who is the only great grandchild omitted from the list of names supplied in the will. The trustee proposes to distribute an undivided one-fifth interest to Charles Gregory Szewczyk, said omitted great grandchild, under the provision of paragraph seven (4.) of the will.

A latent ambiguity having been thus revealed, the First Seneca Bank as trustee filed its petition praying for the appointment of a guardian ad litem for the minor beneficiaries named and a trustee ad litem for unborn or unascertained persons interested in this estate. The court on July 29, 1977, appointed Ivan Hudson, Esq. as such guardian and Ross Green, Esq. as such trustee ad litem. The trustee ad litem, Ross Green, Esq., then filed the exceptions which are before us. /

The exceptions contend that Lawrence Charles [313]*313Szewczyk is inadvertently named Lawrence Gregory Szewczyk and is entitled under said paragraph seven (4.) to an undivided one-fifth interest for fife and that if it is not distributed to him or for his benefit that his children and possibly children unborn will be deprived of their rightful inheritance under paragraph seven (10.).

The issue is thus presented whether Lawrence Charles is the intended beneficiary or whether his son, Charles Gregory, great grandson of testatrix, is the intended beneficiary.

As already indicated, the testatrix in paragraph seven described her secondary beneficiaries as “my two grandchildren and my three great grandchildren” and then proceeded to name them individually. The only name listed which is neither grandchild nor great grandchild is Lawrence Gregory Szewczyk. There is no such person in the family. Lawrence Charles, being neither grandchild nor great grandchild, does not fit the description. His son, Charles Gregory Szewczyk, fits the description, but is not correctly named.

The scrivener of the will, Errol Fullerton, Esq., who ordinarily might be expected to assist with testimony, is deceased. The parties by their counsel have filed a written stipulation and agreed to certain facts orally and no party has offered other evidence or testimony.

It seems well settled in our Pennsylvania cases that where an ambiguity is apparent from the face of the will, or where the language of the will makes no sense, parol evidence is not admissible. Otherwise we would be permitting a will to be established by parol which is contrary to statute: Estate of Jacobson, 460 Pa. 118, 123, 331 A. 2d 447 (1975); 6 Hunter O.C. § 11(b), p. 321 (2d ed. 1974).

[314]*314On the other hand, it appears equally well settled that where the will is sound on its face and a latent ambiguity is discovered, testimony may be received to resolve it: Beisgen Estate, 387 Pa. 425, 128 A. 2d 52 (1956); Logan v. Wiley, 357 Pa. 547, 55 A. 2d 366 (1947); Gerety Estate, 354 Pa. 14, 46 A. 2d 250 (1946); Thomas Estate, 457 Pa. 546, 551, 327 A. 2d 31 (1974).

The guiding principle or “polestar” for the court must be to determine the intent of the testatrix as expressed by the will. Such intent must be found within the four corners of the will in the light of the circumstances when the will was written: Estate of Jacobson, 460 Pa. 118, 122 (1975).

After making the provisions above referred to for her daughter Jean Shumaker and for her grandchildren and great grandchildren during their lives, the testatrix provides for ultimate distribution to the issue of those beneficiaries with cross gifts of the interests of those who may leave no issue to those who do leave issue. There is thus a clear testamentary plan to benefit only the issue of the testatrix. There is an ultimate gift of any “rest, residue and remainder of my estate” (paragraph eight) to Westfield Presbyterian Church but there will obviously be no such “residue” unless the line of testatrix’s descendants should end with her great grandchildren: paragraph seven, subparagraphs seven, eight, nine, ten and eleven of the will. There is thus a clear testamentary design on the part of testatrix to benefit only those in her direct fine of descent. This is indicated by the life estate to her daughter, her naming her grandchildren and great grandchildren as succeeding beneficiaries and providing for ultimate distribution to their offspring. The insertion of the name of her grand[315]*315daughter’s husband among her descendants stands out as an error like the proverbial sore thumb. The error is understandable in light of the similarity of the names Lawrence Charles Szewczyk, Lawrence Gregory Szewczyk and Charles Gregory Szewczyk. It is quite likely that the scrivener had notes of the names of the parents and children and that the error occurred in the scrivener’s office rather than in the mind of the testatrix. In any case, the name of Lawrence Gregory Szewczyk is out of place among the descendants. In view of the correct number of children and grandchildren being stated, it would seem that testatrix meant to include Charles Gregory Szewczyk. Certainly there is no language in the will or in the stipulation of the parties that she had any intent to exclude him.

We believe this conclusion is further supported by the rule that the law favors a construction which will work equality of distribution among those standing in the same relation to the testatrix: Estate of Clarke, 460 Pa. 41, 51, 331 A. 2d 408 (1975). As in Estate of Clarke no discriminatory intent is here manifest. . . .

CONCLUSIONS OF LAW

1. Testatrix intended to name all of her grandchildren and great grandchildren as beneficiaries of her residual estate.

2. The name Lawrence Gregory Szewczyk wherever it appears in the will of testatrix is an inadvertence and was intended to designate her great grandson Charles Gregory Szewczyk who is the son of her granddaughter Kathleen Gail Szewczyk.

3. All share and interest in said estate which [316]

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Related

In Re Estate of Clarke
331 A.2d 408 (Supreme Court of Pennsylvania, 1975)
In Re Estate of Jacobson
331 A.2d 447 (Supreme Court of Pennsylvania, 1975)
Beisgen Estate
128 A.2d 52 (Supreme Court of Pennsylvania, 1956)
Logan v. Wiley
55 A.2d 366 (Supreme Court of Pennsylvania, 1947)
Gerety Estate
46 A.2d 250 (Supreme Court of Pennsylvania, 1946)
Thomas Estate
327 A.2d 31 (Supreme Court of Pennsylvania, 1974)
Young Estate
124 A.2d 453 (Superior Court of Pennsylvania, 1956)

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Bluebook (online)
5 Pa. D. & C.3d 311, 1978 Pa. Dist. & Cnty. Dec. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewster-estate-pactcompllawren-1978.