Opinion by
Mb. Chief Justice Jones,
The present appeals question the interpretation placed by the court below upon the will of Jáy R. Grier who died resident in Philadelphia on June 13, 1958, at the age of 87. Mr. Grier had never married and left to survive him as his heirs at law and next of kin three cousins, two on his maternal side and one paternal. For 67 years he had been a member of the bar of Philadelphia County and, in the practice of his profession, had acquired a reputation as a specialist in probate and orphans’ court matters. His will is typewritten, the typing evidently being his own work. The validity of the will is undisputed. The sole question of law involved is as to the quantum of the decedent’s estate made subject to his testamentary dispositions.
By Item One of the will, the testator ordered and directed his executors to sell his personal property and, “after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations, as hereinafter bequeathed, that is to say:” Then follow the names of four individuals (including the two maternal cousins) and twenty-three eleemosynary corpo[520]*520rations with a specified sum of money allocated to each, “free of all taxes and absolutely.” The sums so specified aggregate $125,450, or roughly 20% of the decedent’s net estate available for distribution after payment of all debts and taxes.
Following the last of these monetary allocations, there is a blank space in the will, about two inches deep and the width of the page; and, immediately following the blank space is Item 2, which is the concluding dispositive provision of the will.
By Item 2, the testator authorized and directed his executors to sell his residence property in Germantown and “to distribute the proceeds to and among the legatees as hereinebefore [sic] named.” This property was the decedent’s only realty and had a value of approximately $6,000.
The testator nominated and appointed two friends as executors of the will and signed it on May 7, 1955. Upon the death subsequently of one of the named executors, the testator on March IS, 1956, wrote in longhand on the bottom of the will, and signed, a codicil appointing a substitute co-executor for the one who had died.
It is agreed on all sides that at least the last named beneficiary and monetary allocation under Item One was typed in a portion of the blank space some time after the testator had typewritten and executed the rest of the will. This is evident from the fact that the type in the last specification is lighter in shade than the preceding typing and the left-hand margin is indented by the width of three type spaces beyond the margin established when the will was originally written. There is also a deviation of two type spaces in the marginal indentation of the three named beneficiaries immediately preceding the last one. It is possible, therefore, that those three specifications were also typed in the blank space subsequent to the testator’s [521]*521execution of the will as originally written. But, however that may be, no one questions that the last beneficiary’s name and monetary allocation was typed in the blank space some time subsequent to the typing of the original will.
The auditing judge concluded that the decedent’s testamentary intent, as evidenced by the written words of his will, was that the whole of his net estate “after all debts, inheritance taxes and the like have been fully paid” should be distributed “to and among” Ms testamentarily named beneficiaries in the proportions that their respectively specified monetary interests in the decedent’s estate bear to the total sum of all such designated interests. On exceptions to the decree nisi entered by the auditing judge, the court en banc reversed and substituted the final decree now here on appeal. This decree, instead of awarding the “residue” of the decedent’s estate after payment of “all debts, inheritance taxes and the like” to the testamentarily named beneficiaries, restricts the distribution to them to the specified sums of the monetary allocations. The result is an intestacy as to four-fifths of the decedent’s estate available for distribution and, this, the court awarded to the testator’s three cousins. The maternal cousins, as already stated, are among the named beneficiaries in the will. But, the testator bequeathed nothing to his paternal cousin whom he had neither seen nor heard of for years, according to the evidence adduced at the audit. The testator’s deliberate intent to exclude that cousin from sharing in the distribution of his estate could hardly be more evident.
The primary testamentary intent, as plainly expressed in Item One of the will, is that “any and all” of the decedent’s personal property should be sold and “after all debts, inheritance taxes and the like have been fully paid” the “residue” (i.e., what remained after the mandated payments) should be distributed [522]*522“to and among the following named persons and/or corporations.” The effect of what the testator thus did was to constitute all of his thereinafter named beneficiaries legatees of his residuary estate as he had defined it in Item One. Such was his unmistakable animus testandi which, rightly, must be kept uppermost in mind if the will is to be interpreted as the law contemplates, viz., according to the intent to be gathered from the plain words found within its four corners. Authority for that fundamental rule of construction hardly needs citation.
The sums specified in the pecuniary allocations were merely for the purpose of spelling out the respective proportionate interests of the named beneficiaries in the “residue” which the testator set apart for distribution “to and among” them. How else could the executors distribute the testamentary defined “residue” of the converted personalty “to and among” the beneficiaries named? Only by so construing the monetary provisions of the will can effect be given to the decedent’s manifest intent to die testate with respect to the whole of his estate available for distribution. “One who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion thereof: Provident Trust Co. of Philadelphia v. Scott, 335 Pa. 231, 6 A. 2d 814; Duffy’s Estate, 313 Pa. 101, 169 A. 142; Appeal of Ferry, 102 Pa. 207; Miller’s Appeal, 113 Pa. 459, 6 A. 715. If possible to do so, a will must be construed to avoid an intestacy; Rapson’s Estate, 318 Pa. 587, 179 A. 436; Boland v. Miller, 100 Pa. 47.” Carmany Estate, 357 Pa. 296, 299, 53 A. 2d 731. In the instant case, the court below made no apparent attempt to construe the decedent’s will so as to render him testate, if possible, as to the whole of his estate for distribution.
Use of the allocated sums, instead of percentages or fractions, to determine the legatees’ proportionate in[523]*523terests in the “residue” for distribution was designed to accommodate the testator’s possibly adding one or more beneficiaries in the blank space, which he actually did later in at least one instance, if not three more. By a monetary specification of a beneficiary’s interest in the “residue”, the addition of another legatee would at once automatically reflect itself in a pro tanto reduction in the respective proportionate interests of all other legatees.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mb. Chief Justice Jones,
The present appeals question the interpretation placed by the court below upon the will of Jáy R. Grier who died resident in Philadelphia on June 13, 1958, at the age of 87. Mr. Grier had never married and left to survive him as his heirs at law and next of kin three cousins, two on his maternal side and one paternal. For 67 years he had been a member of the bar of Philadelphia County and, in the practice of his profession, had acquired a reputation as a specialist in probate and orphans’ court matters. His will is typewritten, the typing evidently being his own work. The validity of the will is undisputed. The sole question of law involved is as to the quantum of the decedent’s estate made subject to his testamentary dispositions.
By Item One of the will, the testator ordered and directed his executors to sell his personal property and, “after all debts, inheritance taxes and the like have been fully paid, to distribute the residue to and among the following named persons and/or corporations, as hereinafter bequeathed, that is to say:” Then follow the names of four individuals (including the two maternal cousins) and twenty-three eleemosynary corpo[520]*520rations with a specified sum of money allocated to each, “free of all taxes and absolutely.” The sums so specified aggregate $125,450, or roughly 20% of the decedent’s net estate available for distribution after payment of all debts and taxes.
Following the last of these monetary allocations, there is a blank space in the will, about two inches deep and the width of the page; and, immediately following the blank space is Item 2, which is the concluding dispositive provision of the will.
By Item 2, the testator authorized and directed his executors to sell his residence property in Germantown and “to distribute the proceeds to and among the legatees as hereinebefore [sic] named.” This property was the decedent’s only realty and had a value of approximately $6,000.
The testator nominated and appointed two friends as executors of the will and signed it on May 7, 1955. Upon the death subsequently of one of the named executors, the testator on March IS, 1956, wrote in longhand on the bottom of the will, and signed, a codicil appointing a substitute co-executor for the one who had died.
It is agreed on all sides that at least the last named beneficiary and monetary allocation under Item One was typed in a portion of the blank space some time after the testator had typewritten and executed the rest of the will. This is evident from the fact that the type in the last specification is lighter in shade than the preceding typing and the left-hand margin is indented by the width of three type spaces beyond the margin established when the will was originally written. There is also a deviation of two type spaces in the marginal indentation of the three named beneficiaries immediately preceding the last one. It is possible, therefore, that those three specifications were also typed in the blank space subsequent to the testator’s [521]*521execution of the will as originally written. But, however that may be, no one questions that the last beneficiary’s name and monetary allocation was typed in the blank space some time subsequent to the typing of the original will.
The auditing judge concluded that the decedent’s testamentary intent, as evidenced by the written words of his will, was that the whole of his net estate “after all debts, inheritance taxes and the like have been fully paid” should be distributed “to and among” Ms testamentarily named beneficiaries in the proportions that their respectively specified monetary interests in the decedent’s estate bear to the total sum of all such designated interests. On exceptions to the decree nisi entered by the auditing judge, the court en banc reversed and substituted the final decree now here on appeal. This decree, instead of awarding the “residue” of the decedent’s estate after payment of “all debts, inheritance taxes and the like” to the testamentarily named beneficiaries, restricts the distribution to them to the specified sums of the monetary allocations. The result is an intestacy as to four-fifths of the decedent’s estate available for distribution and, this, the court awarded to the testator’s three cousins. The maternal cousins, as already stated, are among the named beneficiaries in the will. But, the testator bequeathed nothing to his paternal cousin whom he had neither seen nor heard of for years, according to the evidence adduced at the audit. The testator’s deliberate intent to exclude that cousin from sharing in the distribution of his estate could hardly be more evident.
The primary testamentary intent, as plainly expressed in Item One of the will, is that “any and all” of the decedent’s personal property should be sold and “after all debts, inheritance taxes and the like have been fully paid” the “residue” (i.e., what remained after the mandated payments) should be distributed [522]*522“to and among the following named persons and/or corporations.” The effect of what the testator thus did was to constitute all of his thereinafter named beneficiaries legatees of his residuary estate as he had defined it in Item One. Such was his unmistakable animus testandi which, rightly, must be kept uppermost in mind if the will is to be interpreted as the law contemplates, viz., according to the intent to be gathered from the plain words found within its four corners. Authority for that fundamental rule of construction hardly needs citation.
The sums specified in the pecuniary allocations were merely for the purpose of spelling out the respective proportionate interests of the named beneficiaries in the “residue” which the testator set apart for distribution “to and among” them. How else could the executors distribute the testamentary defined “residue” of the converted personalty “to and among” the beneficiaries named? Only by so construing the monetary provisions of the will can effect be given to the decedent’s manifest intent to die testate with respect to the whole of his estate available for distribution. “One who writes a will is presumed to intend to dispose of all his estate and not to die intestate as to any portion thereof: Provident Trust Co. of Philadelphia v. Scott, 335 Pa. 231, 6 A. 2d 814; Duffy’s Estate, 313 Pa. 101, 169 A. 142; Appeal of Ferry, 102 Pa. 207; Miller’s Appeal, 113 Pa. 459, 6 A. 715. If possible to do so, a will must be construed to avoid an intestacy; Rapson’s Estate, 318 Pa. 587, 179 A. 436; Boland v. Miller, 100 Pa. 47.” Carmany Estate, 357 Pa. 296, 299, 53 A. 2d 731. In the instant case, the court below made no apparent attempt to construe the decedent’s will so as to render him testate, if possible, as to the whole of his estate for distribution.
Use of the allocated sums, instead of percentages or fractions, to determine the legatees’ proportionate in[523]*523terests in the “residue” for distribution was designed to accommodate the testator’s possibly adding one or more beneficiaries in the blank space, which he actually did later in at least one instance, if not three more. By a monetary specification of a beneficiary’s interest in the “residue”, the addition of another legatee would at once automatically reflect itself in a pro tanto reduction in the respective proportionate interests of all other legatees. On the other hand, if percentages or fractions were used to designate the beneficiaries’ respective interests in the “residue” for distribution, every time the testator wanted to add a beneficiary he would have to rewrite his will because of the necessity of making a change in all of the other percentages or fractions. Otherwise, his depositions would exceed the whole.
The testator could not have intended that the monetary allocations specified for his named beneficiaries should 'be the limit of their participation in the distribution of his personal estate, all of which, after payment of all debts and taxes, he had ordered and directed his executors to distribute “to and among” them. He undoubtedly knew that the total of his specified monetary allocations to beneficiaries was but a portion of the estate that would likely be available ultimately for distribution; and he must also have realized that, without knowledge of what his debts and the inheritance and estate taxes would amount to at his death or what the value of his securities and other personal property would be when converted after his death, he could not apportion the whole of his net estate among his beneficiaries by bequeathing to them fixed lump sums.
The design of the decedent’s will, that the residue of his personal estate, after payment of all debts and taxes, should be distributed to his named beneficiaries in the proportions relatively determined by the mone[524]*524tary allocations made; by tbe will, is farther confirmed by Item 2, wherein he directed his executors to make a sale of his residence property in Germantown and “to distribute the proceeds to and among the legatees as hereinebefore [sic]. named.” He had differentiated substantially in the monetary sums allocated by his will to the various named beneficiaries. How else could he have intended such distribution of the proceeds of the realty to be made than in the proportions in which the.“residue” of his personalty was to be distributed?
This case bears a certain analogy to cases of lapsed or void legacies. Any lapsed or void legacy, bequeathed to a person not within the statutorily specified consanguineous relationship, falls into the residue and passes to the residuary legatees “in proportion to their respective shares or interests in the residue.” See Wills Act of April 24, 1947, P. L. 89, §14(10), 20 PS §180.14(10). This provision of the Wills Act of 1947 is not presently applicable, but it would have been had one of the individual beneficiaries died or one or more of the corporate beneficiaries ceased to operate and dissolved prior to the testator’s death. The situation obtaining in the instant case is not different in principle. Here, there was a monetarily unallocated portion of the “residue” of the decedent’s estate for distribution, as defined by Item One of his will. Only by dividing such residual balance among the named beneficiaries in proportion to their respective interests, as fixed by the decedent’s own testamentary apportionment, could Ms executors carry out the plainly expressed mandate of Ms will. The monetarily unallocated balance of the “residue” was a necessary incident of the testator’s scheme for the distribution of Ms entire net estate to Ms beneficiaries.
Actually, the court below did not interpret the will; it merely reconstructed it. By placing one unwarranted [525]*525inference upon another, the lower court brought about a result which is a complete negation of the testator’s pervading intent, that the residue of his converted personal property, after payment of all debts and taxes, should be distributed to and among his named beneficiaries. The course pursued by the court below to reach its result was, first, to impute to the testator, who was concededly well versed in probate nomenclature, a corrupted use óf the word “residue” in the dispositive provision of Item One, and then to infer from this assumption that the testator did not mean the word “residue” to embrace the entire balance of his converted personalty after payment of all debts and taxes as he provided in Item One. In so doing, the court ignored the well-established rule that “In construing a will technical words must ordinarily be given their legal effect since it must be presumed that they were intentionally and intelligently employed: [citing cases].” Baldwin Estate, 377 Pa. 268, 273, 105 A. 2d 52. This rule of construction is peculiarly applicable where the technical words employed are used by one “learned in probate law,” as the court below concedes this testator to have been.
With the word “residue” thus denied its intended meaning, the court below derived its ultimate conclusion by assuming that the specified monetary allocations to the named beneficiaries constituted fixed pecuniary legacies which would have to be deducted from the balance for distribution before a residue would be determinable. This assumption plainly begged the question for decision. The court’s problem was to interpret the will so as to give effect to, and harmonize, all of its parts in order to effectuate, if possible, the testator’s intent. As lately recognized in O’Brien Estate, 381 Pa. 322, 325-326, 112 A. 2d 178, “It is hornbook law that a testator’s intention must be ascertained from a consideration of the entire will; and that [526]*526every clause and every word of a will must be construed together and given effect if that is reasonably possible; and that a clause will not be considered inconsistent or repugnant to other provisions of the will if it can reasonably be construed in a manner consistent with the other provisions of the will: [citing cases].”
Having thus concluded that there existed a different residue than what had been disposed of by the testator’s order and direction to his executors in Item One, the court below then drew the further unsupportable inference that the purpose of the blank space was to enable the testator to type therein later an additional residuary clause, which he never did. There is nothing written or intrinsic in the will to justify such an inference. The only permissible inference to be drawn from the will, itself, as to the purpose of the blank space, is that the testator could later type therein the names of additional beneficiaries with monetary allocations to each, just as he unquestionably did in at least one instance. That is the only fact from which any inference as to the purpose of the blank space can justifiably be drawn. All else is mere guess or speculation. Inferring without basis that “This aged man either wholly forgot to complete his will [by filling in the blank space with a further residuary clause] or died before he made up his mind with finality”, the court en banc gave controlling effect to the blank space, where obviously nothing is expressed, rather than to what the written words of the will plainly import, viz., that what remained of his estate’s converted personality “after all debts, inheritance taxes and the like have been fully paid”, should be distributed “to and among” his named beneficiaries.
The opinion for the court below further argues that, since the will provides in the case of each of the monetary allocations that it should be “free of taxes and absolutely”, the only funds with which the [527]*527inheritance and estate taxes could be paid would be the portion of the decedent’s estate remaining “after the payments of debts, taxes and the other pecuniary legacies”. This argument completely overlooks the provision in Item One of the will that “all debts, inheritance taxes and the like” were first to be paid out of the funds realized from the sale of the decedent’s personal property. The reason for the specific inclusion of a tax free provision in the case of each of the monetary allocations is not difficult to perceive. It was included in order to preserve intact the proportional amounts of the allocated interests in the decedent’s estate. Otherwise, the proportions might have been changed by possible apportionment of estate taxes or by relief of the charities from the Pennsylvania Transfer Inheritance Tax liability which actually did occur a little later. At the time of the execution of the will on May 7, 1955, charities were not so exempt; however, they did become exempt by virtue of the Act of May 28, 1956, P.L. (1955) 1757, which took effect on June 1, 1957. But, the bequests to the individual beneficiaries have never been so exempted. If the testator had not attached the tax free provision to each of the monetary allocations, by the time of his death the bequests to the individuals would have been chargeable with their pro rata share of such taxes and their interests in the “residue” proportionate to the charities’ interests would have been lessened by so much. The provisions in the will securing to each of the beneficiaries complete freedom from liability for inheritance or estate taxes preserved to all alike their proportional interests in the “residue” for distribution on the basis of the monetary allocations as fixed by the testator in his will.
The decree of the court below is reversed and the record remanded for the entry of a decree in accordance with this opinion; the costs to be borne by the estate.