Lifter Estate

87 Pa. D. & C. 269
CourtPennsylvania Orphans' Court, Philadelphia County
DecidedMay 22, 1953
DocketNo. 2; no. 2153 of 1948
StatusPublished

This text of 87 Pa. D. & C. 269 (Lifter 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
Lifter Estate, 87 Pa. D. & C. 269 (Pa. Super. Ct. 1953).

Opinion

Saylor, J.,

In an extended discussion of the facts, the words of the will and the applicable law, the opinion of Bolger, J., upholds the contention of the federation. He found that the time phase is not a fundamental provision of the gift but merely a direction as to administration of the res. He con-eluded that the phrase “within five years of my death” is ambiguous and by decree changed the wording of the provision in parentheses above quoted by supplying the word “wife’s”. Thereby the phrase is made to read (“beginning such erection within a period of not more than five years from the date of my wife’s death”).

We can find no error in this conclusion. Our whole difficulty here results from the exclusion of the word “wife’s” from the clause as it appears in the probated will. With it in the clause all problems are solved. However expertly drawn a will may be — and such is this — its transcription in final form for execution may well result in a harmless typographical error or in a consequential misspelling of a word or words or the actual omission thereof. The result may be such an ambiguity as calls for revision by the court. Any revision affecting substantial interests can of course be made only when fully justified by the circumstances of the case and when in complete harmony with the intentions of testator as clearly and unmistakably drawn from a reading of the complete instrument.

[281]*281In the will before us there are 14 references to testator’s death. There are six instances where the phrase, “after my death” is used, four where he said, “at the time of my death”, and two where he said, “from the date of my death”, one where he said, “my death”, and one, “before my death”.

On the other hand, on one occasion appear the words, “upon the death of my wife”, and on four occasions the words, “at the time of the death of my said wife” are used. Counsel for the collateral heirs argues that testator showed he knew what he was doing when he distinguished between his wife’s death and his own. We believe that to be so, but, contrariwise, we also believe that with the frequent use of phrases relating to either his or his wife’s death the testator’s will — as finally typed — could very well contain an error, one way or the other, in at least one of the 19 places where the word “death” occurs.

Hence, we support the conclusion of the opinion judge in finding that in the first sentence of paragraph eighth (A) testator meant to say, “my wife’s death”, and not “my death”. We believe that otherwise it must follow that testator must be considered as having perpetrated a hoax on the charity he sought to help and as having created a trap to catch it in a building enterprise he would encourage the charity to undertake and then deny it the means to complete.

We believe that testator intended that the federation should begin the erection of the building within five years of his wife’s death, not his own. This is manifest from testator’s directions that:

1. The building to be erected by the charity is to be built solely with the fund bequeathed by decedent which could not pass into the possession of the charity until the life estate of the wife had terminated; and

2. The charity was to erect the kind of building which would be most urgently needed at the time of [282]*282distribution, but the only distribution referred to is that to be made upon the death of the wife. (See the introductory statement of the eighth item of the will, supra.)

It is also apparent that literal application cannot be made of the provision, “in case the conditions of the foregoing bequest to the Federation . . . are not met within 60 days from the date of my death and the gift to the Federation therefore does not become operative . . .”. By testator’s own words the conditions could not be fulfilled within 60 days after his death:

1. The building was to be erected “not more than five years from the date of my death”. Accepting for the moment that “my death” is decedent’s death, the 60-day limitation conflicts with the five-year limitation.

2. The federation was to bind itself to make payments for the support of decedent’s sister if she was living “at the time of the death of my said wife”. Apart from the unlikely contingency that decedent’s wife would die within the 60 days following decedent’s death, this 60-day limitation is again not applicable.

3. “. . . the building so to be erected shall be free of all mortgages and ground rents and shall be paid for fully with the amount bequeathed to the Federation by me.”

Whether this condition was satisfied could not be determined until the construction of the building was completed and all bills paid. Obviously this could not occur within the 60-day period, even ignoring the fact that the federation had a five-year period within which to begin construction.

The absurdity of a literal application of the 60-day limitation confirms the conclusion that the phrase “my death” does not indicate an intentional limit upon a gift. To give “my death” or the 60-day limitation a [283]*283literal application will defeat the clear intent of decedent to benefit the federation. Blind adherence to the letter of the will shall not be allowed to defeat this purpose.

Counsel for respondent contends that the gift to the charity cannot take effect because of the well-established rule of law that a gift subject to a condition precedent cannot vest if the condition is not satisfied. The cases which he cites in support of this principle are not inconsistent with the conclusion that under the facts of this case the gift to the charity has vested.

The condition precedent must be clearly expressed. In Adams v. Johnson, 227. Pa. 454, 456-57 (1910), the court stated:

“In construing a particular provision of a will, the intention of the devisor to create an estate on condition governs, but it must be manifested in express terms, or by clear implication, and it is to be gathered from the whole instrument and the existing facts. . . .”

The court noted that in the case then before it “this condition is expressed in apt words.” (227 Pa. at 457.) “The language of the will and all the circumstances surrounding the parties leave no doubt that such was the intention of the testator. . . .” (227 Pa. at 458.)

In Campbell v. M’Donald, 10 Watts 179, 181 (1840) the court noted:

“It is difficult, if not impossible, to raise a doubt as to what was the intention of the testator in this case.”

In discussing the validity of a condition precedent, the court stated (10 Watts 184) :

“. . . yet if his [testator’s] intention be expressed in clear and unambiguous terms, it must stand and be regarded as his will.”

In the case now pending before this court it cannot [284]*284be stated that decedent has clearly and unambiguously established a condition precedent. Here he has specified that conditions must be met within 60 days after his death, although one of these conditions is that construction of a building be commenced within five years after his death and that the building be constructed from funds given to the charity upon the death of the wife (which may be a date later than five years after his death), and that the building must be such as will be most urgently needed at the time of the wife’s death.

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Bluebook (online)
87 Pa. D. & C. 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lifter-estate-paorphctphilad-1953.