NO. 218.
Opinion,
Mr. Justice Green:
One of our earliest cases, in which the rule that a bequest to children does not include grandchildren was declared, was Hallowell v. Phipps, 2 Wh. 376. It was thus stated by Mr. Justice Rogers in delivering the opinion of this court: “ Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise from a clear intention or necessary implication; as where there are not other children than grandchildren, or when the term ‘ children ’ is further explained by a limitation over in default of issue. The word ‘ children ’ does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term is only permitted in two cases, viz., from necessity, which occurs when the will would remain inoperative unless the sense of'the word ‘ children ’ were extended beyond its natural import, and where the testator has clearly shown, by other words, that he did not intend to use the term ‘ children ’ in the proper actual meaning, but in a more extensive sense.” The above statement of the rule was supported by a citation of numerous decisions which fully sustain it in all its parts. With us it has never been departed from, but has been enforced in many instances, and never with any abatement of any of its terms. Examples of this are Dickinson v. [271]*271Lee, 4 W. 82; Barnitz’s App., 5 Pa. 264; Horwitz v. Norris, 49 Pa. 213; Castner’s App., 88 Pa. 478.
It is very clear that one of the two exceptions to the operation of the rule does not exist in the present case. There are other actual children of the testator, to whom the words of the codicil do apply, and lienee there is no reason of necessity for departing from the ordinary meaning of the word “ children ” as designating the legatees mentioned in the codicil. The other exception is, “ where the testator has clearly shown by other words that lie did not intend to ase the term ‘ children ’ in the proper, actual meaning, but in a more extensive sense.” All the authorities agree that such intention must clearly appear, and if it does not, the word “ children ” must be confined to its ordinary meaning.
In support of the contention for the grandchild, much stress was laid upon the marginal notes to the will and codicil, and it was chiefly upon a consideration of the words found in the margin of the codicil that the learned court below held, reversing the auditor, tbat the grandchild was included in the codicil. The codicil was in these words: “1 desire that all my personal estate or property of every kind shall be divided equally between my wife, Hannah L. 17. Hunt, and all my children, share and share alike, and that my said wife shall have the same right as my children to take any part thereof that she may want at the appraisement.” It cannot for a moment be questioned tbat tliose words, by themselves, under all the authorities, clearly exclude the grandchild. Unless the reasoning from other sources plainly shows that she should be included as a legatee, because such was tlio manifest intent of the testator, she must remain excluded by force of the proper and usual meaning of the word “ children ” in the codicil. The marginal note by the side of tbe codicil is in these words: “ Personal estate to be divided equally among all the heirs.” It is claimed tbat, as tbe grandchild would be an “ heir ” in case of intestacy, she comes within the description of those entitled to the estate, and that the testator must be held to have meant “ heirs ” in tbe codicil, instead of “ children ; ” in other words, that he used tbe two terms, “ heirs ” and “ children,” in the same sense. The first reply to this is that the codicil is the actual, affirmative, testamentary expression, and the marginal note does not even [272]*272purport to be a part of it. It is a mere memorandum, a curt note, or reference to the substance of the codicil. Every section of the will has a similar marginal note by its side, and they were all evidently written, not with a view to make them the substantive testamentary act, but as a short, briefly expressed memorandum of the contents of the yill and codicil, to enable the testator to see the whole will at a glance.' Of course, if there were a conflict between the literal meaning of a clause of the will as fully written out and the language of the marginal note by its side, the language of the will must prevail. The marginal note could not be more than a mere aid in the ascertainment of the meaning of the testator, where the fully written out clause of the will makes that meaning doubtful. It certainly would not be legitimate to raise the doubt by means of the note, if the intent is clearly expressed in the body of the will, and then reject the plain, clear meaning of the will, and substitute in its place the very questionable meaning of the note, which was neither written nor intended as a part of the testamentary act. The word “ children ” in the codicil is absolutely free of doubt as to its meaning. A grandchild is not a child, where there are children to answer the description of the legatees. Certainly, it will not do to strike down the plain meaning of that word, which is in the testament, in order to attribute an entirely different meaning to it, because a word which is very commonly used in a doubtful sense is found here, not in the testament, but in a mere curt, untechnical, inartificial marginal reference.
But, in the next place, it is perfectly manifest that the word “ heirs ” in the marginal note was not used in its technical sense, and therefore does not necessarily embrace the grandchild. That word includes the whole body of those who would or might take a decedent’s estate under the intestate law, and is of far broader significance than the word “children” or “grandchildren,” or even lineal descendants. Nothing is clearer than that the testator did not use the word in its technical sense. It occurs several times in the notes to the different clauses of the will, and never in its technical meaning. Thus, in the seventh section he uses it as synonymous with “ children ” only. He there directs that all his children shall be allowed to select such articles as they may desire from his [273]*273furniture, silver, and books “as souvenirs of their home.” He then directs that each child shall be charged with the article selected at the appraisement price, and any portion remaining after “all my children” shall have selected such articles as they may desire shall be sold for the benefit of his estate. This is a privilege which, of course, is limited to his children only; and yet in the note on the margin of the seventh clause are the words: “ Heirs may select what they may desire, and take at the appraisement.” His grandchild never had her home with him, and nothing of the articles enumerated could be a souvenir of her home to her. In the latter part of the tenth clause of the will he makes the same use of the two words “children” in the will and “heirs” in the margin. In the will, he gives to his children a right to take any part of his real or personal estate at the price at which the same may be appraised, and in the note he says: “ Property to be appraised ; heirs to have refusal.” The privilege of selection is limited to the children, and in the margin he refers to them as heirs.
But, again; the grandchild is nowhere named in the will.
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NO. 218.
Opinion,
Mr. Justice Green:
One of our earliest cases, in which the rule that a bequest to children does not include grandchildren was declared, was Hallowell v. Phipps, 2 Wh. 376. It was thus stated by Mr. Justice Rogers in delivering the opinion of this court: “ Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise from a clear intention or necessary implication; as where there are not other children than grandchildren, or when the term ‘ children ’ is further explained by a limitation over in default of issue. The word ‘ children ’ does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term is only permitted in two cases, viz., from necessity, which occurs when the will would remain inoperative unless the sense of'the word ‘ children ’ were extended beyond its natural import, and where the testator has clearly shown, by other words, that he did not intend to use the term ‘ children ’ in the proper actual meaning, but in a more extensive sense.” The above statement of the rule was supported by a citation of numerous decisions which fully sustain it in all its parts. With us it has never been departed from, but has been enforced in many instances, and never with any abatement of any of its terms. Examples of this are Dickinson v. [271]*271Lee, 4 W. 82; Barnitz’s App., 5 Pa. 264; Horwitz v. Norris, 49 Pa. 213; Castner’s App., 88 Pa. 478.
It is very clear that one of the two exceptions to the operation of the rule does not exist in the present case. There are other actual children of the testator, to whom the words of the codicil do apply, and lienee there is no reason of necessity for departing from the ordinary meaning of the word “ children ” as designating the legatees mentioned in the codicil. The other exception is, “ where the testator has clearly shown by other words that lie did not intend to ase the term ‘ children ’ in the proper, actual meaning, but in a more extensive sense.” All the authorities agree that such intention must clearly appear, and if it does not, the word “ children ” must be confined to its ordinary meaning.
In support of the contention for the grandchild, much stress was laid upon the marginal notes to the will and codicil, and it was chiefly upon a consideration of the words found in the margin of the codicil that the learned court below held, reversing the auditor, tbat the grandchild was included in the codicil. The codicil was in these words: “1 desire that all my personal estate or property of every kind shall be divided equally between my wife, Hannah L. 17. Hunt, and all my children, share and share alike, and that my said wife shall have the same right as my children to take any part thereof that she may want at the appraisement.” It cannot for a moment be questioned tbat tliose words, by themselves, under all the authorities, clearly exclude the grandchild. Unless the reasoning from other sources plainly shows that she should be included as a legatee, because such was tlio manifest intent of the testator, she must remain excluded by force of the proper and usual meaning of the word “ children ” in the codicil. The marginal note by the side of tbe codicil is in these words: “ Personal estate to be divided equally among all the heirs.” It is claimed tbat, as tbe grandchild would be an “ heir ” in case of intestacy, she comes within the description of those entitled to the estate, and that the testator must be held to have meant “ heirs ” in tbe codicil, instead of “ children ; ” in other words, that he used tbe two terms, “ heirs ” and “ children,” in the same sense. The first reply to this is that the codicil is the actual, affirmative, testamentary expression, and the marginal note does not even [272]*272purport to be a part of it. It is a mere memorandum, a curt note, or reference to the substance of the codicil. Every section of the will has a similar marginal note by its side, and they were all evidently written, not with a view to make them the substantive testamentary act, but as a short, briefly expressed memorandum of the contents of the yill and codicil, to enable the testator to see the whole will at a glance.' Of course, if there were a conflict between the literal meaning of a clause of the will as fully written out and the language of the marginal note by its side, the language of the will must prevail. The marginal note could not be more than a mere aid in the ascertainment of the meaning of the testator, where the fully written out clause of the will makes that meaning doubtful. It certainly would not be legitimate to raise the doubt by means of the note, if the intent is clearly expressed in the body of the will, and then reject the plain, clear meaning of the will, and substitute in its place the very questionable meaning of the note, which was neither written nor intended as a part of the testamentary act. The word “ children ” in the codicil is absolutely free of doubt as to its meaning. A grandchild is not a child, where there are children to answer the description of the legatees. Certainly, it will not do to strike down the plain meaning of that word, which is in the testament, in order to attribute an entirely different meaning to it, because a word which is very commonly used in a doubtful sense is found here, not in the testament, but in a mere curt, untechnical, inartificial marginal reference.
But, in the next place, it is perfectly manifest that the word “ heirs ” in the marginal note was not used in its technical sense, and therefore does not necessarily embrace the grandchild. That word includes the whole body of those who would or might take a decedent’s estate under the intestate law, and is of far broader significance than the word “children” or “grandchildren,” or even lineal descendants. Nothing is clearer than that the testator did not use the word in its technical sense. It occurs several times in the notes to the different clauses of the will, and never in its technical meaning. Thus, in the seventh section he uses it as synonymous with “ children ” only. He there directs that all his children shall be allowed to select such articles as they may desire from his [273]*273furniture, silver, and books “as souvenirs of their home.” He then directs that each child shall be charged with the article selected at the appraisement price, and any portion remaining after “all my children” shall have selected such articles as they may desire shall be sold for the benefit of his estate. This is a privilege which, of course, is limited to his children only; and yet in the note on the margin of the seventh clause are the words: “ Heirs may select what they may desire, and take at the appraisement.” His grandchild never had her home with him, and nothing of the articles enumerated could be a souvenir of her home to her. In the latter part of the tenth clause of the will he makes the same use of the two words “children” in the will and “heirs” in the margin. In the will, he gives to his children a right to take any part of his real or personal estate at the price at which the same may be appraised, and in the note he says: “ Property to be appraised ; heirs to have refusal.” The privilege of selection is limited to the children, and in the margin he refers to them as heirs.
But, again; the grandchild is nowhere named in the will. She is not a legatee by name, nor is she even spoken of or referred to as his grandchild, or, specifically, as a legatee of anything. Under the ninth and tenth clauses of the will, which give the residue to the persons who would be entitled under the intestate law, she would be entitled to take her father’s share by representation, and that is the only way in which she could claim a single penny of the estate. But that method of distribution is entirely destroyed by the codicil, which substitutes a totally different method. There he directs that the estate shall be divided equally between “ my wife ” and “ all my children.” Now, under the will the grandchild could come in, not because she was named as a legatee, but because she was one of a class to the whole of whom the residue was given. But under the codicil the gift to that class is taken away, and another class is substituted in its place: the class named in the will take nothing, and the class named in the codicil take everything. The grandchild was a member of the class named in the will, but she is not a member of the class named in the codicil; and to let her in under the codicil would be to destroy the whole scheme of distribution as established [274]*274by the codicil, and to restore the method established by the will. We have no right to do this, and certainly ought not to do it for so very questionable a reason as to admit one who was never named personally or by description in the will, who never could take anything under the will except as a member of a class which can take nothing under the codicil. The scheme of the codicil, of course, must prevail. We cannot possibly let the grandchild into that scheme, unless we force her there in violation of the plainest and clearest words which exclude her absolutely. The only reason for doing this which has any force at all is that she comes within the technical meaning of a word appearing on the margin of the codicil, which it is conclusively certain the testator did not use in its technical sense in any part of the will or codicil, and which could not be enforced in that sense by any possibility. There is, therefore, no clear intent of the testator, manifest upon the face of the will or codicil, to Use thé word “ children ” in the codicil in any other than its ordinary and proper meaning, and therefore that meaning must prevail.
As to the facts outside the will, they are of but little significance, but, such as they are, they lead to the conviction that he intended to exclude the grandchild; but it is not necessary to discuss them. The will and codicil have a plain, clear meaning, in our judgment; and it is our duty to enforce it. The decree of the Orphans’ Court must be reversed.
The decree of the court below is reversed at the cost of the appellee, and the record is remitted, with instructions to distribute the estate of the decedent in accordance with the report of the auditor, which is hereby confirmed.
no. 221.
Mr. Justice Geeen :
We have just decided in the case of Hunt’s Appeal, ante, 270, that the ward of the appellant in this case has no interest in the estate of her grandfather, the testator, and therefore she has no right to be heard in the proceedings for its distribution.
Appeal quashed.