Henderson Estate

23 Pa. D. & C.2d 719, 1961 Pa. Dist. & Cnty. Dec. LEXIS 382
CourtPennsylvania Orphans' Court, Philadelphia County
DecidedMay 12, 1961
Docketno. 269
StatusPublished

This text of 23 Pa. D. & C.2d 719 (Henderson Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson Estate, 23 Pa. D. & C.2d 719, 1961 Pa. Dist. & Cnty. Dec. LEXIS 382 (Pa. Super. Ct. 1961).

Opinion

Bolger, J.,

These exceptions involve the interpretation of the will of Adelaide C. Henderson for the purpose of determining which of her grandchildren are entitled, upon the death of the last surviving of her four children, to take the one-fourth share of the trust under the residuary clause of the will, of a child who died childless.

Testatrix died May 22, 1910. Her will was dated November 8, 1908. She was survived by four children: George W., William H., Louisa B. H. Shumway and Gertrude W. H. Horner. All of said children are now deceased and, with the exception of William H., were survived by and are now represented by children.

William H. died June 9, 1949, without issue, but survived by his sister, Gertrude.

Following his death, the writer, as auditing judge, awarded the income from his trust to Gertrude and withheld distribution of principal stating: “The question of principal distribution did not arise until the death of the surviving life tenant.”

The present accounting has been filed because of the death of Gertrude, the last surviving child of testatrix. Judge Shoyer, as auditing judge, awarded the share of William’s trust per stirpes to the grandchildren, including the children of George. The children of Louisa and Gertrude, exceptants, claim they are entitled to take William’s share to the exclusion of George’s children.

George had lived to receive his one fourth share outright. Louisa’s children received their mother’s share at her death, and Gertrude’s children will now receive their mother’s share of principal. Are they, and they only, entitled to share William’s one fourth stirpitally and exclude George’s children? Did testatrix intend this inequality among grandchildren and thus disinherit George’s children respecting the fund now before the court?

[721]*721Judge Shoyer applied the doctrine of equality among the grandchildren as a class based upon his interpretation of the entire will, relying principally upon the authority of Hunter’s Pennsylvania Orphans’ Court Commonplace Book, 2d, vol. IV, §11 (i), page 111, that “A general gift to a class may include a person who has been restricted to a particular gift, or one who has been expressly excluded from benefit under the will, where the gift to the class contains no such restriction or exclusion”: Webb’s Estate, 62 Pa. Superior Ct. 547.

In paragraph thirteenth, residuary clause, the first one fourth share of residue is bequeathed outright to son, George. The remaining three fourths are then given in spendthrift trusts to each of testatrix’ three other named children respectively for the balance of their lives; two of these children were then married daughters. Under the trust, upon the deaths of any one of these three children, their issue succeed to the income of the share of the parent until age 21, when they become entitled to principal per stirpes.

This subparagraph is lengthy and in the course of it, testatrix refers several times to “any of my children” and “all persons entitled in remainder.” Sub-paragraph 6 contains the provision in dispute. The pertinent part of it reads as follows:

“. . . but should any of my said three children die leaving no children or other issue, living at the time of such child’s death, I direct that the portion of the principal share of any such deceased child of mine shall continue to constitute a part of my residuary estate for the benefit of the remaining cestui que trustent in the trusts in this will mentioned and in the proportions hereinabove designated, subject, nevertheless, to the trusts, conditions and limitations hereinabove declared.”

Subparagraph 7 next proceeds to dispose of the share of any “of my children” who predecease testa[722]*722trix in trust for the issue of such child or children or issue until 21 and thereupon the principal to such persons per stirpes. The concluding sentence reads as follows:

“The division among the issue of the deceased child shall be per stirpes, and such issue to take the share only which their parent would have taken had she or he reached the age of twenty-one years.”

Paragraph fourteenth provides an in terrorum clause which states should “any person entitled to any interest under this my will” endeavor to “defeat my intentions as herein expressed . . .” he shall forfeit his share and any shares thereupon are bequeathed “to my remaining children share and share alike subject to all the conditions and limitations herein provided therefor.”

Thus in the testamentary scheme, after the minor bequests referred to, no child but George was to receive anything but income except under paragraph fourteenth, while no grandchild or later issue was to receive anything but principal except during minority. Since George’s outright gift became effective, his children will receive nothing unless it be in the present situation. The picture now presented is that George has received his individual share outright, while the children of the two daughters have already received their respective parent’s share and now claim all of the one fourth share to the complete exclusion of George’s children. The result will be that George’s two daughters are not only being treated unequally, but will be completely disinherited. Did testatrix so intend?

The first question is: Does the testamentary intent clearly appear in the language of the will? In Britt Estate, 369 Pa. 450 (1952), appear several pertinent rules of construction to determine whether the intent be clear or ambiguous. The first of these is that testatrix’ intent is the pole star; that it must be ascertained [723]*723from a consideration of the entire will which must be read in the light of the circumstances surrounding testatrix when she made it, including the condition of her family, the natural objects of her bounty and the amount and character of her property; that if no ambiguity exists, her meaning must be ascertained from the language of her will. “Where a testator’s intent is clear from the language of his entire will, technical rules or canons of construction are unnecessary; it is only where the intent is uncertain or the language ambiguous that such canons should be resorted to”: (Page 455). The familiar doctrine that the court must put itself in the armchair of testator adverted to in the cited case is hornbook law. The time element is salutary here because exceptants argue that since the trust under subparagraph 7 never became effective, it is meaningless. Events subsequent to death, a “coffin” or “grave” viewpoint instead of arm-chair approach, can have no bearing upon interpretation: Schmick Estate, 349 Pa. 65; Walker Estate, 376 Pa. 16.

Other pertinent rules are as follows: The position, structure of or sequence of sentences or paragraphs are never allowed to defeat the general intention of testatrix, and we must impute to her words such a meaning as under the circumstances will conform to her probable intention and be most agreeable to reason and justice and not lead to an unnatural or inequitable result: Clark Estate, 359 Pa. 411. Every word or phrase must be considered: Bigony Estate, 397 Pa. 102; Horn Estate, 351 Pa. 131.

Irwin’s Estate, 304 Pa. 200, contains three principles applicable here by analogy.

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Cite This Page — Counsel Stack

Bluebook (online)
23 Pa. D. & C.2d 719, 1961 Pa. Dist. & Cnty. Dec. LEXIS 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-estate-paorphctphilad-1961.