Good Estate

34 Pa. D. & C.2d 14, 1963 Pa. Dist. & Cnty. Dec. LEXIS 16
CourtPennsylvania Orphans' Court, Clinton County
DecidedDecember 16, 1963
Docketno. 38
StatusPublished

This text of 34 Pa. D. & C.2d 14 (Good Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Clinton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Good Estate, 34 Pa. D. & C.2d 14, 1963 Pa. Dist. & Cnty. Dec. LEXIS 16 (Pa. Super. Ct. 1963).

Opinion

Lipez, P. J.,

This is an appeal from the decision of the register of wills admitting to probate a writing dated February 15,1961, as Hus[15]*15ton E. Good’s last will and refusing to probate a writing dated February 12, 1947, as his last will. The appeal is by certain of beneficiaries under the 1947 writing.

Good was a member of the Lycoming County Bar, as well as a certified public accountant. He had practiced neither profession for many years prior to his death at the age of 70 on March 5, 1962, devoting his time entirely to farming. Though married at one time and divorced, he had no children, leaving only collateral heirs. He lived alone on one of a number of farms he owned, and was described as odd and eccentric, though well read and intelligent.

Shortly after his death, Roy L. Bryerton, Clinton County Coroner, found in a writing desk in the kitchen of decedent’s farmhouse in Pine Creek Township, Clinton County, a piece of cardboard on which there appeared in his handwriting the following:

“My Will My farms, etc., I leave to those who can take them.
My remains take the scars and bumps acquired in caring for the farms.
If I may have inspired anyone to cherish the good earth during my lifetime, we take this with us.
„ ~ , Huston E. Good
Avis, Pa.
Feb. 15, 1961”

This document was probated as his will on March 22, 1962, and letters of administration were issued to Bessie Parks Wurster, a cousin and one of numerous collateral heirs. It is from the probate of this writing as a will, and the refusal to admit to probate a carefully [16]*16drawn will of 19471 as his last will, which is the subject of this appeal.

Is the 1961 document a will? Does its language qualify under the Blackstone definition as “ ‘The legal declaration of a man’s intentions, which he wills to be performed after his death’ ”: Burtt Will, 353 Pa. 217, 221. In ascertaining that intention it is not our province to consider what he possibly intended, but only his intention as expressed in the language used: Gibson v. McBurney, 399 Pa. 195. It is where the intention is ambiguously expressed that difficult problems arise. If it is so indefinite and uncertain as to be incapable of intelligent interpretation and enforcement, it is void: 40 P. L. Encyc. Wills §83.

The document has only a superficial resemblance to a will. Though it is designated “My Will,” when we attempt to determine the meaning of “my farms, etc. I leave to those who can take them” we are completely frustrated. Proponents say this means that it goes to those who can take by descent; that is by operation of law to those heirs who would be entitled under the intestate laws. Passing, the question of what is covered under “my farms, etc.,” there is nothing in the docu[17]*17ment itself which aids us in determining the identity of the “those who” referred to in this clause, nor the meaning of the crucial word “take”. When we resort to the doubtful, especially in will cases, expedient of ascertaining the dictionary definition of a word of such common usage as “take”, we find it is susceptible of many meanings. Webster’s Third New International Dictionary (unabridged-Merriam Webster), devotes over three page-length columns to definitions and applications, practically all of which are dependent on the manner of its use since the word in itself has little intrinsic meaning. In 83 C. J. S., this succinct summary appears: “The word ‘take’, which comes from the Scandinavian root meaning to grasp, grip, seize, lay hold of, is considered to be one of the commonest and plainest in the English language ... it does have many shades of meaning, and the precise meaning which it is to bear in any case depends on the subject with respect to which it is used.”

Essentially the correct meaning of a word2 is determined by the particular context of its use. This is especially true of one so general in its nature and so devoid of specific connotation as “take”. To import into it the meaning of take by descent, or by operation of law would be, in our judgment, not only an unwarranted extension of its meaning, but would constitute an interpolation for which there is no justification in the context in which it appears.

We must conclude, therefore, that whatever may have been in testator’s mind, his intention is so vaguely and obscurely stated in the 1961 document as to be void for uncertainty: Wise v. Rupp, 269 Pa. 505. In Re: [18]*18Womack’s Estate, 253 Pa. 384; Kelley v. Kelley, 25 Pa. 460; Restatement, Property §248.

Proponents, however, contend that assuming the 1961 writing is determined not to be a will, nevertheless, it should be considered as an “other writing” under section 5 of the Wills Act of April 24, 1947, P. L. 89, 20 PS §180.5, which impliedly revokes the 1947 will in part at least. They say that testator’s intent to revoke his prior will is shown by the testimony of their witness, Mrs. Bessie Wurster, and a letter she received from him. She testified that several days before November 23, 1949, Good talked to her about settling his estate. Shortly thereafter she received a letter from him, dated November 23,1949, wherein he stated in the last paragraph, “Bessie I made a will since I saw you. It contains nothing that obligates you in any way. But thought something could happen and I wanted some changes made. This will is in a little wooden box in the bureau drawer in the middle bed-room.” This evidence, say the proponents, along with the 1961 writing, which refers particluarly to “my farms etc.,” constitutes a revocation at least as to the farms and whatever else the “etc.”3 might be construed to mean.

It is true, of course, that there may be revocation by another writing of any sort, provided it is executed in the manner required of wills, even though the instrument may not be capable of probate as a will: Kehr Will, 373 Pa. 473; Bregy “Intestate, Wills and Estates Acts of 1947,” p. 2361. The revocation may be either express or implied and the principles governing revocation by an other writing are similar to these governing revocation by a later will: Bregy, supra.

Obviously, there is no express revocation here. The most that can be said for the testimony is that testator [19]*19may have made another will in November, 1949, with “some changes.” While it may have been evidence of an intention to revoke the 1947 will by a will in 1949 to the extent of the “some changes,” since no such will was produced, there was, therefore, no act of revocation by a writing declaring a revocation: Shetter’s Estate, 303 Pa. 193. Furthermore, this evidence clearly referred to a supposed 1949 will, and as such, is not applicable to the 1961 writing.

Even if we should stretch the intention here as a carry-over until 1961, we run into the problem of vagueness again as to the meaning of the clause referring to “my farms etc.,” which we previously discussed. In any event, the 1961 clause instead of being inconsistent with the 1947 will, which is the requisite for implied revocation, Gray Will, 365 Pa. 411, actually is consistent with it, for it is only by reference to the disposition of the farms in the 1947 will that we can understand what testator meant by “those who can take them.”

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154 A. 288 (Supreme Court of Pennsylvania, 1931)
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156 A. 166 (Supreme Court of Pennsylvania, 1931)
Kelley v. Kelley
25 Pa. 460 (Supreme Court of Pennsylvania, 1855)
Price v. Maxwell
28 Pa. 23 (Supreme Court of Pennsylvania, 1857)
Hirst's Appeal
92 Pa. 491 (Supreme Court of Pennsylvania, 1880)
Nelson's Estate
23 A. 373 (Supreme Court of Pennsylvania, 1892)
Galli's Estate
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Wise v. Rupp
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Gray Will
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Kehr Will
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Bluebook (online)
34 Pa. D. & C.2d 14, 1963 Pa. Dist. & Cnty. Dec. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/good-estate-paorphctclinto-1963.