Duld Estate

8 Pa. D. & C.2d 330, 1956 Pa. Dist. & Cnty. Dec. LEXIS 441
CourtPennsylvania Orphans' Court, Lehigh County
DecidedJune 19, 1956
Docketno. 31,384
StatusPublished

This text of 8 Pa. D. & C.2d 330 (Duld Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duld Estate, 8 Pa. D. & C.2d 330, 1956 Pa. Dist. & Cnty. Dec. LEXIS 441 (Pa. Super. Ct. 1956).

Opinion

Gearhart, P. J.,

This dispute centers about the interpretation of the will of Mathias Duld, who died October 19, 1940, leaving a will dated [331]*331June 28, 1937, which has been duly probated. Frank H. Duld, a son, was granted letters testamentary. He died on November 13, 1953, subsequent to which the dispute ripened concerning the nature of the interest which Frank H. Duld had received under the terms of his father’s will. Declaratory judgment' proceedings were instituted in March 1954. These proceedings were terminated on December 1, 1955, by order of court pursuant to the prayer of petitioners for leave to discontinue the action. Proceedings were then instituted for an inquest in partition on the petition of Dorothy L. Busch, Marjorie G. Duld, a minor, by her guardian, The Lehigh Valley Trust Company, and Johanna Jones, now known as Jennie Jones. Dorothy L. Busch and Marjorie G. Duld are the children of Samuel Duld, deceased. To the petition for inquest in partition, Marjorie Duld, widow of Frank H. Duld, made answer. Subsequent thereto a pretrial conference was held and by mutual agreement the issue to be disposed of at the outset was declared to be the matter of the translation and interpretation of the probated will of Mathias Duld.

It should be here stated that the will of testator was a holographic one written in German script and when offered for probate contained a translation by Dr. Conrad Wilker, a recognized German scholar, now deceased. At a later hearing a translation by Dr. Preston A. Barba, also a recognized scholar, was submitted. In the opinion of the court there is no substantial difference in the two translations. The issue before the court at this time is to determine from an interpretation of the will what the respective interests of the parties are.

Petitioners contend that under the will of testator, the son, Frank Duld, held a life estate in premises 844 Jackson Street, 846-50 Jackson Street, 139 South Ninth Street and 1023 Lawrence Street, subject to a [332]*332charge against the premises in favor of testator’s son, Samuel, for $4,000 and in favor of testator’s daughter, Johanna, for $4,000. They further contend that there was a gift by implication of the premises to children of Frank Duld and that since Frank Duld died childless, the remainder in fee under the terms of the will vested in Johanna Jones and the children of Samuel Duld, the latter having died November 14, 1949, survived by the two children, petitioners as hereinbefore indicated. As to the gift to Frank’s wife contained in the last dispositive line of the will, petitioners insist that she took but a one-third interest in the premises for life. Summing up the matter, petitioners contend that title to the premises is vested in them subject to a one-third life interest in Frank’s widow, who is respondent in this case.

Respondent, on the other hand, contends that her husband, Frank Duld, under testator’s will, took title in fee to the real estate on the payment of the sum of $4,000 to Samuel Duld and $4,000 to Johanna Jones. This constitutes the issue presently before us.

The will of testator as translated by Dr. Wilker and which accompanied the will at the time of probate is as follows:

“June 28, 1937
“I Mathias Duld, herewith declare the following: At the conclusion of my life my property, moveable and unmoveable, shall go over into the name of my son Frank. The house 844 Jackson St., 846-50 Jackson St., together with apartment 139 S. 9th St. and house 1023 Lawrence St. therefrom Frank shall pay my son Samuel four thousand dollars and my daughter Johanna four thousand dollars.
“The property shall not be sold as long as Frank Duld lives. Should he die childless then it is to revert to brother and sister, if they do not live to their children.
[333]*333“If Frank’s wife should out live him she shall have a right to one-third.
“This is my Will.
“Empowered by my own writing.
“Frank shall be the Executor.
“Mathias Duld
846 Jackson St.
Allentown, Pa.”

Respondent’s contention that Frank Duld took a fee rests upon the familiar principle of law that: “ ‘Where there is an absolute gift of a thing, later words in the same instrument will not operate to reduce the estate thus given, unless it is reasonably certain that such was the intention of the donor’ ”: Lerch’s Estate, 309 Pa. 23, 27; Calder’s Estate, 343 Pa. 30, 38; Fairman’s Estate, 287 Pa. 334, 336; Byrne’s Estate, 320 Pa. 513. And respondent argues that the primary intent of testator, to be gathered from the will and the circumstances surrounding testator at the time of the writing of the will, indicates an intent to vest a fee in his son Frank.

Before discussing the provisions of the will and the various contentions of the parties, it is necessary to bear in mind certain well-recognized rules of construction employed in the interpretation of wills where the language is not clear. The basic principle in the interpretation of wills is the search for testator’s intention and that intention must be found from a reading of the whole will: Fletcher v. Hoblitzell, 209 Pa. 337; Williamson’s Estate, 302 Pa. 462; Sarver’s Estate, 324 Pa. 349. And of course in finding the intent, all the words used by testator must be taken into account and given effect if at all possible: Kirkpatrick’s Estate, 280 Pa. 306, 310; March Estate, 357 Pa. 216; Byrne’s Estate, supra, 513. The scope of the inquiry is limited to the meaning of what testator said. See Mr. Justice Jones’ comprehensive discussion of the [334]*334principle in Farmers Trust Co. v. Wilson, 361 Pa. 43, 46, 47.

And in those cases where an ambiguity exists or where the intention of testator is not clearly revealed by the words of the will, the court must consider the circumstances surrounding testator at the time he wrote the will in order to give an intelligent construction to the words actually used: Gilmor’s Estate, 154 Pa. 523, 529, 530; McGlathery’s Estate, 311 Pa. 351; Jackson’s Estate, 337 Pa. 561; Wright Estate, 380 Pa. 106. For a discussion of the subject, see Fiduciary Review, May 1956, page 4.

Since there is a substantial dispute as to the intention of testator as set forth in the words of his will, we permitted parol evidence to be introduced to show the circumstances surrounding testator at the time of writing the will, i.e., conditions of the family, the nature of his bounty, the nature of his property, etc.; this only for the purpose of aiding the court in construing the words of testator. The words employed by testator of course form a gauge of testator’s intent: Ludwick’s Estate, 269 Pa. 365, 371; Thompson on Wills, 3rd Edition, page 336; Page on Wills, Lifetime Edition, vol. 2, sec. 920, p. 815.

With these principles in mind, we proceed to an examination of the will and the contentions of the parties.

Respondent points to the first line of testator’s will where he says: “At the conclusion of my life my property, moveable and unmoveable, shall go over into the name of my son Frank”, and argues that if this were the only paragraph in section 14, subparagraph 3 of the will, Frank would be entitled to a fee by reason of Wills Act of April 24, 1947, 20 PS §180.14(3), which provides:

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Bluebook (online)
8 Pa. D. & C.2d 330, 1956 Pa. Dist. & Cnty. Dec. LEXIS 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duld-estate-paorphctlehigh-1956.