Opinión by
Mr. Justice Linn,
These appeals require the construction of the will and códicil of Alan Campbell Harris. He was a citizen of the United States', domiciled at Sierre', Canton of Valais, Switzerland'; he died June 4,1941, without issue, survived by his widow, Elsa Treumann Harris. His next of kin are two brothers, residing' in the United States. One of them, born in 1870, has no descendants; the other, born in 1880, has four children. Elsa Treumann Harris was born in Germany February 19, 1869, and is now:76 yéa'rs of age. In 1934, she whs declared mentally incompetent in Switzerland and is there con
fined in an institution for the mentally ill; slie is afflicted with dementia prsecox, a progressive and incurable disease. Dr. Otto Peyer,
counsellor-at-law in Zurich was appointed guardian of her estate. Her “heirs and next of kin”, the record states, “are German nationals residing in Germany”. The parties agree that Mr. Harris “had the legal right” pursuant to treaty with Switzerland “to provide that his estate should be governed by and distributed in accordance with the laws of his country of origin”; that he was born in the City of Philadelphia and that Pennsylvania shall be regarded as the state of origin. ...
On November 20, 1940, in Switzerland, he made a will appointing an executor and making specific bequests to various legatees in the total of 375,000 Swiss francs. This will contained no residuary clause and no reference to his wife. On February 3, 1941, he made a codicil, written in French by a Swiss scrivener, disposing of the residue of his estate not dispossed. of in the Will of November 20,1940. This codicil contains a clause about the meaning of which the parties differ: The question is whether the testator made a gift to his wife or whether, without making such a gift, he merely left her to the exercise of such right or rights as the law gave her.
We now have for consideration appeals from two courts; an appeal from an order of the Court of Common Pleas No. 1 of Philadelphia County; and two appeals from a declaratory judgment rendered by the Orphans’ Court of Philadelphia County.
After the probate of the will and codicil in Switzerland, an exemplified copy was probated in Philadelphia County and ancillary letters of administration c. t. a.
were granted to Girard Trust Company. The ancillary administrator then filed its petition in Court of Common Pleas No. 1 alleging the incompetency of Elsa Treumann Harris, her guardianship in Switzerland; that testator left real property in Philadelphia and applied for the appointment of an ancillary guardian to care for Mrs. Harris’ property in Pennsylvania. The court appointed the Provident Trust Company of Philadelphia to be ancillary guardian of her estate. The ancillary guardian then filed its petition
in Court of Common Pleas No. 1 stating that testator’s widow had a limited time under the statute in which to elect to take against the will and desiring instructions
whether or not to elect on behalf of its ward. Testator’s two brothers answered and opposed the petition. After hearing, the court, for reasons stated in its opinion, to be considered later, directed the ancillary guardian not to file an election. The ancillary guardian appealed to this court from that decree and that appeal, No. 74, January Term, 1944, is now before us.
On the first argument of that appeal, it appeared that a proper appreciation of the questions involved and their decision by this court would be aided by the immediate construction of testator’s will and codicil by the Orphans’ Court of Philadelphia County which had exclusive jurisdiction of the administration by the administrator c. t. a. A petition was therefore filed in the Orphans’ Court by the ancillary guardian praying for a declaratory judgment “construing the rights and inter
est of the ward of tbe petitioner under the will and codicil of Alan Campbell Harris, deceased”.
A joint answer was filed by testator’s brothers, contending that the codicil did “not constitute a gift or legacy or bequest or devise to his wife”, and that, on the contrary, he gave his entire estate to them as next of kin and heirs at law. After argument on petition and answer, the Orphans’ Court entered a declaratory judgment to the effect that testator had made a bequest and devise to Elsa Treumann Harris. Testator’s brothers appealed from that judgment (Nos. 283 and 284, January Term, 1944) and this appeal is now also before us.
We shall deal first with the appeals construing the codicil because, if the Orphans’ Court correctly held that the testator gave his wife one-half his estate, the maximum which a widow may elect under Pennsylvania law, the question of election raised in the appeal from the order of the Court of Common Pleas No. 1 is moot for the reason that if she was given one-half by the codicil, she can receive no more by taking against it.
By far the larger part of testator’s property consisted of his interest in a testamentary trust created by his grandfather, Thomas H. Powers, who died in 1878, domiciled in Philadelphia, leaving a will probated in Philadelphia. This trust is being administered by the Girard Trust Company. An account filed in the Orphans’ Court by the Girard Trust Company, surviving
trustee of the estate of Thomas H. Powers, deceased, and awaiting audit, shows that the net worth of the principal of the trust is $6,835,000, invested in Philadelphia and Pennsylvania securities, personalty and realty. Thomas H. Powers provided that the trust should terminate and distribution be made twenty-one years after the death of the survivor of his grandchildren living at the time of his death. In that trust, on the death of his mother oh August 30,1921, the testator, Alan Campbell Harris, acquired a vested equitable interest in an undivided one-third part of the corpus, subject to an executory limitation
on a contingency to be stated, requiring the payment of income to his widow for life in the amount of one-half the income of the third part of the trust. From his interest in this trust, Alan Campbell Harris had been receiving income, at or about the time of his death, at the rate of about $60,000 a year. The contingency referred to above results from the provision
that if any of Thomas H. Powers’ grandchildren die without issue and without malting testamentary provision for his or her surviving spouse, the trustee shall pay to such surviving spouse for life, out of the the trust income, an
amount equal to one-half the income theretofore-payable to such grandchild. That contingency happened if Alan Campbell Harris made no provision for his wife in the codicil, which is the fact to be determined on this-appeal. ■ ■
At the time Alan Campbell Harris made his will and codicil, he also had absolute ownership of property in Pennsylvania valued at about $472,000 and in Switzerland at about $250,000. At that time, Elsa Treumann Harris owned property in Switzerland worth about $60,000, presumably under the administration of the Swiss guardian, and in Pennsylvania worth about $10,-000 and now under the administration of the ancillary guardian. In addition, she was receiving and continues to receive annuities of about $4,000 under trusts created by her husband’s relatives’ in Pennsylvania.
With, that brief statement of the situation of the testator,. of the natural objects pf his bounty, of the property held by hjm absolutely and as cestui que trust, w.e come to the construction of the codicil in. the appeals from the Orphans’Court. . . ;
It is perhaps not surprising that differences have, arisen in ascertaining the testator’s expressed, intention.; his “formal wishes” were expressed by a, .Swiss lawyer who was thinking in French in terms of the Swiss law with which. he was familiar and writing .a. testamentary disposition to be governed by the law of Pennsylvania with which he was not familiar.
What testator meant must be determined by his words. The record contains two translations, one made in Switzerland and filed with the exemplification of the will and codicil, and the other made in the Swiss consulate in Philadelphia. They are
.
“2. Unless I have otherwise disposed my whole snccession is to go entirely to my relatives in the United States of America, it being understood that my wife shall receive the
compulsory portion
as provided by law in proportion as the suecessional law of my country prescribes . . . This is the expression of my formal wishes.”
“2.
As much as I have not disposed otherwise, my whole estate shall revert entirely to my relatives in the United States of America, it being understood that my wife shall receive the
compulsory portion,
provided for by the Law, in the measure provided for by the Estate Law of my country . . . Such is the expression of my formal (explicit) will.”
The learned court below said, “The sole question to be determined is what share, if any, the widow is entitled to receive by virtue of the phrase ‘shall receive the
compulsory portion,
provided for by the Law’.” After so stating the question for decision, the learned court held that “. . . these words constitute a testamentary gift to the widow of the share of her husband’s estate she would be entitled to receive under the Intestate Laws of this State . . The court said the clause “ ‘She shall receive’ is construed as expressing, ‘I give, devise and bequeath’.”
The contention made on behalf of testator’s brothers, in opposition to that conclusion, is that he intended, by what he said, to give them the entire residue of his estate and that he added parenthetically that, while giving his brothers the entire residue, he understood that his widow had a right under the law of Pennsylvania with which he could not interfere.
We must reject the construction suggested by the learned court below. The codicil begins with testator’s election to have the law of his country applied. He then referred, in the first line of paragraph 2 (by the words “Unless I have otherwise disposed”) to the fact that he had not disposed of his entire estate by his will. He then proceeded in the same sentence to dispose of the entire residue by describing it as “my whole succession”. This “whole succession”, he declares, “is to go entirely to my relatives”, etc. (according to one translation), and according to the other, “shall revert entirely to my relatives”, etc. If he had stopped there, it must have been conceded, that he had given his brothers all his property. He then continued the sentence by saying, “it being understood” that his wife had some right or rights by “the successional law” or “the estate law” of his country. This is nothing more than a recognition by him of the existence of such rights. As the learned court below has read a different meaning out of the clause, we must resolve the uncertainty by the aid of rules of construction. The question of construction then becomes: How is the clearly stated, absolute gift to his brothers of the entire residue to be affected by the uncertainty and ambiguity of the next clause in the same sentence? The rule is that a testator may by words, standing alone, give an absolute estate and then, by subsequent words, may cut down that absolute estate, but such a reduction in quantum may be made only by words clearly and unambiguously requiring that result:
Chestnut v. Chestnut,
300 Pa. 146, 151 A. 339;
Haydon’s Estate,
334 Pa. 403, 6 A. 2d 581;
Byrne’s Estate,
320 Pa. 513, 181 A. 500. We think such words are lacking in this codicil. The learned court construed the words my wife “shall receive” the “compulsory portion” as if testator had written, “I give, devise and bequeath the compulsory portion . . .” If we adopt that reading, we must read the single sentence as saying that the “whole succession”,
“shall revert entirely”
to my brothers but out of the
“whole succession” given to them, I withdraw part and “give, devise and bequeath”, to my wife so much thereof as corresponds to what is known in Swiss- law: a:s the “compulsory portion” which one spouse must leave to a surviving. spouse. But without, more apt words .than those employed by the testator, the .court has no authority to reduce the direction that the whole residue is to “revert entirely” to his relatives. . ■
. When we consider the position of- the clause-in the sentence of which it is part, and take account of the structure of the sentence and the purpose of the scrivener, we think the clause cannot be regarded as having been intended to make a gift under the law of Pennsylvania. It is not important that the translator, in rendering the future tense Of. the verb “receive”,, used the auxiliary “shall” instead of “will”.
The testator, having just given his entire residue, was adding that, with respect to the “compulsory portion”,
his wife should be relegated to. her rights under the law of Pennsylvania. The next inquiry must be: What are those rights? In Pennsylvania, there
is
no “compulsory portion”; that term is the translation of the technical term in the Swiss law, “Zft
réserve”,
which; according to the .expert, who
testified in the proceeding in the Common Pleas, means property which a husband, leaving a wife, may not give to someone else and which, notwithstanding his attempt to do so, remains her property and which her trustee in bankruptcy can seize for account of her creditors. The term “compulsory portion” has no counterpart in Pennsylvania law.
Not only have we-no such “compulsory portion” in this State, but the only right the widow has is the right to elect. It is a mere personal privilege and is not property:
Fleming’s Estate,
217 Pa. 610, 66 A. 874. A widow cannot be required to elect by her creditors or anyone else:
Fleming’s Estate,
217 Pa. 610, 66 A. 874. Unexercised by her, the right does not pass by her will or under the intestate law :
Anderson’s Estate,
185 Pa. 174, 39 A. 818. If she is mentally incompetent, her guardian cannot elect without authority of the court, as will appear later in our opinion disposing of the appeal No. 74. If testator, by using the words “compulsory portion” intended to make a gift of the quantum of property his wife could elect to take by the law of Pennsylvania, he could have made the gift in fewer words than the scrivener used in the entire clause; he might have said, I give my wife such portion of my estate as she can elect to take against my will. It is significant that he did not; and still more significant that the prior provision that his “whole succession” his “whole estate” “is to go entirely to my relatives”, etc., shows that he did not intend to make such a gift to his wife. We must of course reject the contention that in the context, there is something donative in the verb translated “shall re
ceive”. That argument merely substitutes for the auxiliary “shall” the word “must”,
and leaves untouched what, if anything, was given.
We have been referred to cases in which testator measured his gift by describing it as the portion of his estate which a surviving widow had the right to elect. For example, in
Morris’s Estate,
298 Pa. 25, 147 A. 840, the testator gave his wife “so much of my estate as she could claim under the intestate laws of the State of Pennsylvania”, and left the balance of his property to his business partners. In
Carrell’s Estate,
264 Pa. 140, 107 A. 664, testator gave his wife “the interest in my estate that the intestate laws of the State of Pennsylvania directs”. Of this provision we said, “It gives to the widow such interest in the estate as the intestate laws of the state direct; in other words, such interest as she would be entitled to receive in ease he were to die intestate”. These gifts were considered to be clearly and unambiguously expressed. The same thing is true in
Erk’s Estate,
311 Pa. 185, 166 A. 656. The testator gave his wife such portion of his estate as “is required by Pennsylvania law but not more”. The meaning of those words was made clear by other provisions in the same will, as reference to the original record will show; the gift to his wife was followed by a gift to his brother of the balance remaining after deducting the gifts previously made to his wife and another. The intention to make a gift measured by the extent of the right which she might exercise was thus clearly expressed in the will. These and similar cases are of no assistance in resolving the uncertainty and ambiguity of the parenthetical clause in the codicil now under consideration.
In the construction of an ambiguous testamentary provision, all the circumstances confronting the testator when he made his will may be considered. Chief Jus
tice Maxey, in
Jackson’s Estate,
337 Pa. 561, 565, 12 A. 2d 338, said: “Among the accredited canons which are applied in interpreting wills which do not unmistakably reveal the maker’s intention, are the following: (1) ‘The law will impute to a testator’s words such a meaning as, under all the circumstances, will conform to his probable intention and be most agreeable to reason and justice’:
Johnson v. Brasington,
156 N. Y. 181, 185, 50 N. E. 859. (2) ‘In determing the testator’s intention the court should place itself as nearly as possible in his position, and hence . . . should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed . . . the state of the property devised, the amount and character of the property of the testator when he made his will
(McGlathery’s Est.,
311 Pa. 351, 166 A. 886) and ‘the testator’s relation to the beneficiaries, their condition or necessities . . See also
Miller’s Estate,
323 Pa. 9, 186 A. 99;
Hermann’s Estate, 220
Pa. 52, 69 A. 285;
Frisbie’s Estate,
266 Pa. 574, 109 A. 663;
Brooklyn Trust Co. v. Warrington,
277 Pa. 204, 120 A. 825;
Mayer’s Estate,
289 Pa. 407, 137 A. 627;
Sterrett’s Estate,
322 Pa. 300, 185 A. 214;
Wanamaker’s Estate,
312 Pa. 362, 167 A. 592;
Lerch’s Estate,
309 Pa. 23, 159 A. 868;
Conner’s Estate,
346 Pa. 271, 29 A. 2d 514.
The federal estate tax situation was a circumstance that would property have weight with him in déciding whether his wife would be more richly left by a testamentary gift to her or by allowing to happen the contingency provided for in the trust created by his grandfather to the effect that on failure of a grandchild to provide by will for his or her childless spouse, such surviving spouse should receive for life one half the income received by the grandchild. Testator’s interest in the trust estate, said to be valued at over $2,000,000.00 is subject to inheritance and estate taxes in a very large amount. If his widow receives the income under the
conditional gift of the grandfather, she will receive a large income from that trust — one-half of what her husband had been receiving. As his grandfather died in 1878, testator would assume that this benefit to his widow would not be subject to estate taxes not at that time in existence. As she is now 76 years old, she can never, by taking against the will, enjoy the trust principal not distributable until 21 years after the death of her husband’s brother. Testator was thus confronted Avith the problem (1) of giving her half his estate by will subject to an estate tax burden that might leave nothing payable to her for the years during which it was necessary to obtain out of the trust the funds to meet the estate tax burden, or (2) of refraining from making a gift and thereby allowing her at once to receive the grandfather’s gift of one-half the annual income of testator’s interest in the trust created by the grandfather. ' Altogether apart from the result of the analysis of the codicil made earlier in this opinion conclusively showing that no gift was made to the widow, we cannot believe that the testator, confronted with those alternatives presented by the tax situation, intended, by the words of the parenthetical clause, to leave his widow without income from his or his grandfather’s property for any. considerable period; on the contrary, we think he intended by what he said, to make no gift to his widow and that, in any event, he would have refrained from doing so for the very purpose of enabling her immediately to receive the income provided by the grandfather’s will.
Appeal No. 74.
The question for decision on this appeal is whether there was abuse of judicial discretion in refusing to direct the ancillary guardian to elect to take against the will and codicil. The relevant facts have been stated in the appeals from the Orphans’ Court.
It is firmly established that the committee of a lunatic or the guardian of a weak-minded person cannot
elect on behalf of the ward to take against the will of the latter’s spouse unless empowered to do so by the court:
Kennedy v. Johnston, 6
5 Pa. 451;
Arnold’s Estate,
249 Pa. 348; 363, 94 A. 1076, 1081;
Brooke’s Estate,
279 Pa. 341, 344, 123 A. 786, 787;
Stockton’s Estate,
311 Pa. 189, 166 A. 648;
German’s Case,
318 Pa. 200, 178 A. 38;
Gerlach’s Estate,
127 Pa. Superior Ct. 293, 300, 301, 193 A. 467, 470, 471. It is exclusively for the court, which is the real guardian of the incompetent, to determine whether such an election should be made, and well defined principles have been laid down as guides for the exercise of its discretionary power. Chief among these is that the leaning of the law is toward the will :
Kennedy v. Johnston,
65 Pa. 451, 454, 455;
In re Bringhurst; Fidelity Trust Co.’s Appeal,
250 Pa. 9, 13, 95 A. 320, 321;
Stockton’s Estate,
311 Pa. 189, 191, 166 A. 648. The reason for this doctrine is that thé intentions of a testator should not be defeated, "unnecessarily, by judicial action, for every person, generally speaking, has the right to dispose of his estate according to his own wishes and therefore his will should'be upheld as far as possible. It is common knowledge that not every widow disregards her husband’s last wishes for the disposition of his property merely because she would obtain a greater quantum of his estate by so doing; sentiment enters into such situations quite as much as considerations of material advantage, and, if she is reasonably provided for in her husband’s will or her' wants are otherwise adequately supplied, it does not follow, just because such provision may not be as much as she might elect,'that she would file an election to take against his will. Therefore, when the court acts on behalf of a mentally defective widow it should not be controlled by mere mathematical calculations of the financial results that would accrue to her one way or the other.!
Another principle frequently stated is that, while the court should base its decision on the consideration of all the circumstances
[Kennedy v. Johnston,
65 Pa.
451, 455;
Stockton’s Estate,
311 Pa. 189, 191, 166 A. 648;
German’s Case,
318 Pa. 200, 203, 178 A. 38, 40), the welfare of the widow is the main object of such consideration, and therefore the interests of her creditors or heirs who might either benefit or suffer by the choice to be made are almost wholly immaterial in the determination of the question. If the needs of the incompetent are satisfactorily provided for, the court should not authorize an election which would result in diverting the property of the deceased husband from his own heirs or legatee to those of his widow:
In re Bringhurst; Fidelity Trust Co.’s Appeal,
250 Pa. 9, 14, 95 A. 320, 321;
Brooke’s Estate,
279 Pa. 341, 343, 123 A. 786, 787;
Stockton’s Estate,
311 Pa. 189, 166 A. 648; see also
Miller’s Estate,
9 D. & C. 657. An election to take against the will in this case would not only divert property owned absolutely by her husband, which for convenience may be designated as his estate, but would also divert a large interest in the corpus of the trust created by Thomas H. Powers which, for present purposes may be referred to as the grandfather’s estate. If an election to take against the will were authorized, the widow would thereby obtain one-half of her husband’s estate, such half having a value of approximately $360,000, and she would also become entitled to an annual income for life of about $30,000, that being half of what he had been receiving from the grandfather’s estate and to a half share of his vested interest in the principal of that estate, such half having a value of approximately $1,-140,000 but not receivable by her because not distributable
until the termination of the trust twenty-one years after the death of the survivor of her husband’s brothers. All this property would be subject to estate taxes that would quite certainly absorb the $360,000 and materially reduce the annual income from the trust. As she would not live to enjoy any part of the principal
of the grandfather’s ultimately distributable estate, it is obvious that all that could be obtained for her own benefit by taking against the will, would be half the annual income received by her husband, reduced, as has been said, by the taxes payable out of her husband’s estate. On the other hand she is more than well provided for by not taking against the will. She has $70,000 in principal; receives $4,100 a year in income from trusts created by her husband’s relatives, and will receive the annual income (perhaps $30,000) from that portion of the grandfather’s estate vested in her husband subject to the conditional limitation.
In summarizing the case the learned court below well said: “The court cannot in this situation properly take that course which would create for the incompetent a large estate of which she could by no possibility have the present benefit in her lifetime, but which ultimately would go to her next of kin sometime in the distant future. The primary consideration is the current welfare of the incompetent herself, and the court’s discretion in the matter must be so exercised as to serve that purpose. Of course, if it were necessary, in order to assure the incompetent of sufficient income adequately to care for her, to elect to take against her husband’s will, the court would so direct, notwithstanding that as a consequence thereof some benefit would accrue to her next of kin on her death. However, if adequate provision for the incompetent is made either by the will or there are other sources of assured income for the incompetent, the court may not properly direct the guardian to take against the will, which would result in diverting a part of the principal estate to strangers of the blood of the testator. All the more true is this, when related to an interest which the deceased husband had in another estate, to wit, that -of his grandfather, from the blood of whom the incompetent’s next of kin would be that much further removed. The court cannot properly divert the estate of the incompetent’s husband’s
grandfather from his own blood unless there were a compelling necessity to do so. ...”
We find no abuse of discretion.
Numbers 283 and 284.' The judgment is reversed and it-is; now declared that Alan Campbell Harris, by his will and codicil, made no gift, legacy or devise to his wife, Elsa Treumann Harris.
■ Number 74. Order affirmed.
In' each case the costs shall be paid out of the principal' of the estate of Allan Campbell Harris.