Opinion by
Mr. Justice Horace Stern,
Decedent, George W. Nevil, a man of considerable means, died in 1930. By his will he bequeathed sums of money to various friends and charities, — fourteen gifts in all. He then disposed of his residuary estate as follows: “I give and bequeath all the rest, residue and remainder of my estate ... to my Executors and Trustees hereinafter named, In Trust Nevertheless, to invest the same and keep the same invested, and after deducting the proper charges against the said trust estate and a reasonable compensation for their services, to pay out of the net income thereof as follows: — (1) To Mary A. Kelly the sum of Seven Thousand Dollars monthly so long as she shall live free and clear of any and all her debts, contracts or engagements, and after her death the principal of the said estate, upon which she has been receiving the said monthly sum, shall become a part of my residuary estate. (2) To establish and maintain an Asylum for the deaf, dumb or blind to be known as the ‘Nevil Asylum for the Deaf, Dumb or Blind’, the said net income to be allowed to accumulate until (it) reaches a sum sufficient, in the judgment of the Executors and Trustees, to establish and maintain such asylum and the support of the same thereafter to be paid out of the income.”
[32]*32• After appointing Dimner Beeber and the Girard Trust Company as executors and trustees and giving them authority to invest in non-legal securities, he provided as follows: — “All the bequests, legacies and devises herein contained are to be free from any and all taxes lawfully imposed or to be imposed by the United States Government or any State Government or any Municipal authority thereof, which taxes are to be paid by my estate.”
The question here involved arises under the last quoted provision. Mary Kelly, who subsequently married and became Mary K. Ellis and was later divorced, now. contends that the bequest to her of $7,000 monthly so long as she should live was to be free, not only of the estate and transfer inheritance taxes ordinarily provided for in a will, but also of her annual income taxes during the entire period of her life. Decedent was a bachelor and 84 years old at the time of his death. His housekeeper had brought over from Ireland a niece, Mary Kelly, then but a young child, who continued to live in decedent’s household for about 25 years before his death; during his lifetime he had deeded to her his two valuable residential properties, one in Haverford and one in Ventnor, New Jersey. At the time of decedent’s death she was 31 years of age with a life expectancy of about 40 years. Dimner Beeber having died several months prior to the death of decedent the Girard Trust Company, as surviving executor and’ trustee, has regularly paid her the $84,000 a year out of the income of the trust; it filed its first account as trustee in 1935 and its second account in 1939, both of which were duly audited, but at neither time was any claim made by her that the estate was obliged to pay her income taxes. That claim was made for the first time when the third account of the trustee was filed.and audited in 1946;. she then demanded that [33]*33she be reimbursed by the trustee for the income taxes theretofore imposed upon her by reason of her receiving the monthly payments of $7,000, and that the estate should pay such income taxes thereafter. She explained that her delay in making this claim was due to the fact that during the first years of the trust the investments had been largely in municipal securities and her income taxes were therefore comparatively small, but later on the trustee invested in non-exempt securities, and this, together with the increases in the rate of tax, had made her tax burden very much greater.
The learned court below rejected her claim and she now appeals from its adverse decision.
It is, of course, indisputable that a testator, if he so desires, can provide that his estate should pay not only all estate and transfer inheritance taxes but also the annual income taxes of any or all of the beneficiaries under his will. The question here to be determined is whether it was this decedent’s intention so to do, — an intention to be gathered from a reasonable interpretation of the language employed in his will. It may be noted in this connection that among his bequests was one of $30 per week to one Harry Kirk so long as he should live, and another to one Louise Zimmerman of $15 per week so long as she should live, so presumably, if appellant’s contention were to be upheld, the estate would be obliged to pay the income taxes on the annual payments made to those two beneficiaries the same as on the annual payments made to her.
In our opinion the provision that all the bequests, legacies and devises made by testator were to be free from any and all taxes imposed or to be imposed by the United States Government or any State Government or any Municipal authority thereof, which taxes were to be paid by his estate, cannot be reasonably construed otherwise than as meant to cover only the usual type of [34]*34taxes due and payable out of the estate at the time of decedent’s death and not annual income taxes thereafter payable by the beneficiaries, — in appellant’s case, for example, over a likely period of 40 years. What the testator apparently intended was that appellant should receive from the estate the full sum of her legacy, $7,000 per month, and she does receive from it that amount without deduction or diminution of any kind. Income taxes are not assessed on any bequest or legacy, nor on any specific items of property or sums of money; they are dependent upon a multiplicity of factors wholly apart and distinct from any particular items of income received by the taxpayer, — such, for example, as the amount of charitable contributions he has made, the medical expenses he has incurred, the losses he has sustained from fires, storms or bad debts, the number of his dependents, the deductions to which he is entitled because of advanced age or blindness, and various other items many of which depend upon his voluntary engagements and activities; if this appellant were to remarry and annually file with her husband a joint tax return the amount of her income liability would doubtless be greatly altered; so also the kind of investments from which the income is derived — whether or not in tax-exempt securities — enters as a large determinant of the amount of tax payable on the income derived therefrom. The importance, indeed, of such elements in the computation of the tax is strikingly shown by the fact that in appellant’s case, although her income from the trust has been the same each year — $84,000— her annual income tax liability from the time of decedent’s death has varied irregularly from practically nothing to approximately $30,000 in 1947, which is the last year for which the figures are set forth in the record. To be construed as meaning that the estate should pay such changing annual income taxes there would be required language much more explicit and [35]*35indubitably clear than the phraseology which this testator employed.
There does not appear to be any exact precedent for the present case. However, in Magee’s Estate205 Pa. 37, 54 A. 491, where a testator bequeathed a sum of money to his executors to invest and pay over the income to a named legatee, and directed that “all taxes, federal and state, upon the bequests made and legacies created in my will, . . .
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Opinion by
Mr. Justice Horace Stern,
Decedent, George W. Nevil, a man of considerable means, died in 1930. By his will he bequeathed sums of money to various friends and charities, — fourteen gifts in all. He then disposed of his residuary estate as follows: “I give and bequeath all the rest, residue and remainder of my estate ... to my Executors and Trustees hereinafter named, In Trust Nevertheless, to invest the same and keep the same invested, and after deducting the proper charges against the said trust estate and a reasonable compensation for their services, to pay out of the net income thereof as follows: — (1) To Mary A. Kelly the sum of Seven Thousand Dollars monthly so long as she shall live free and clear of any and all her debts, contracts or engagements, and after her death the principal of the said estate, upon which she has been receiving the said monthly sum, shall become a part of my residuary estate. (2) To establish and maintain an Asylum for the deaf, dumb or blind to be known as the ‘Nevil Asylum for the Deaf, Dumb or Blind’, the said net income to be allowed to accumulate until (it) reaches a sum sufficient, in the judgment of the Executors and Trustees, to establish and maintain such asylum and the support of the same thereafter to be paid out of the income.”
[32]*32• After appointing Dimner Beeber and the Girard Trust Company as executors and trustees and giving them authority to invest in non-legal securities, he provided as follows: — “All the bequests, legacies and devises herein contained are to be free from any and all taxes lawfully imposed or to be imposed by the United States Government or any State Government or any Municipal authority thereof, which taxes are to be paid by my estate.”
The question here involved arises under the last quoted provision. Mary Kelly, who subsequently married and became Mary K. Ellis and was later divorced, now. contends that the bequest to her of $7,000 monthly so long as she should live was to be free, not only of the estate and transfer inheritance taxes ordinarily provided for in a will, but also of her annual income taxes during the entire period of her life. Decedent was a bachelor and 84 years old at the time of his death. His housekeeper had brought over from Ireland a niece, Mary Kelly, then but a young child, who continued to live in decedent’s household for about 25 years before his death; during his lifetime he had deeded to her his two valuable residential properties, one in Haverford and one in Ventnor, New Jersey. At the time of decedent’s death she was 31 years of age with a life expectancy of about 40 years. Dimner Beeber having died several months prior to the death of decedent the Girard Trust Company, as surviving executor and’ trustee, has regularly paid her the $84,000 a year out of the income of the trust; it filed its first account as trustee in 1935 and its second account in 1939, both of which were duly audited, but at neither time was any claim made by her that the estate was obliged to pay her income taxes. That claim was made for the first time when the third account of the trustee was filed.and audited in 1946;. she then demanded that [33]*33she be reimbursed by the trustee for the income taxes theretofore imposed upon her by reason of her receiving the monthly payments of $7,000, and that the estate should pay such income taxes thereafter. She explained that her delay in making this claim was due to the fact that during the first years of the trust the investments had been largely in municipal securities and her income taxes were therefore comparatively small, but later on the trustee invested in non-exempt securities, and this, together with the increases in the rate of tax, had made her tax burden very much greater.
The learned court below rejected her claim and she now appeals from its adverse decision.
It is, of course, indisputable that a testator, if he so desires, can provide that his estate should pay not only all estate and transfer inheritance taxes but also the annual income taxes of any or all of the beneficiaries under his will. The question here to be determined is whether it was this decedent’s intention so to do, — an intention to be gathered from a reasonable interpretation of the language employed in his will. It may be noted in this connection that among his bequests was one of $30 per week to one Harry Kirk so long as he should live, and another to one Louise Zimmerman of $15 per week so long as she should live, so presumably, if appellant’s contention were to be upheld, the estate would be obliged to pay the income taxes on the annual payments made to those two beneficiaries the same as on the annual payments made to her.
In our opinion the provision that all the bequests, legacies and devises made by testator were to be free from any and all taxes imposed or to be imposed by the United States Government or any State Government or any Municipal authority thereof, which taxes were to be paid by his estate, cannot be reasonably construed otherwise than as meant to cover only the usual type of [34]*34taxes due and payable out of the estate at the time of decedent’s death and not annual income taxes thereafter payable by the beneficiaries, — in appellant’s case, for example, over a likely period of 40 years. What the testator apparently intended was that appellant should receive from the estate the full sum of her legacy, $7,000 per month, and she does receive from it that amount without deduction or diminution of any kind. Income taxes are not assessed on any bequest or legacy, nor on any specific items of property or sums of money; they are dependent upon a multiplicity of factors wholly apart and distinct from any particular items of income received by the taxpayer, — such, for example, as the amount of charitable contributions he has made, the medical expenses he has incurred, the losses he has sustained from fires, storms or bad debts, the number of his dependents, the deductions to which he is entitled because of advanced age or blindness, and various other items many of which depend upon his voluntary engagements and activities; if this appellant were to remarry and annually file with her husband a joint tax return the amount of her income liability would doubtless be greatly altered; so also the kind of investments from which the income is derived — whether or not in tax-exempt securities — enters as a large determinant of the amount of tax payable on the income derived therefrom. The importance, indeed, of such elements in the computation of the tax is strikingly shown by the fact that in appellant’s case, although her income from the trust has been the same each year — $84,000— her annual income tax liability from the time of decedent’s death has varied irregularly from practically nothing to approximately $30,000 in 1947, which is the last year for which the figures are set forth in the record. To be construed as meaning that the estate should pay such changing annual income taxes there would be required language much more explicit and [35]*35indubitably clear than the phraseology which this testator employed.
There does not appear to be any exact precedent for the present case. However, in Magee’s Estate205 Pa. 37, 54 A. 491, where a testator bequeathed a sum of money to his executors to invest and pay over the income to a named legatee, and directed that “all taxes, federal and state, upon the bequests made and legacies created in my will, . . . shall be paid out of my estate, and not deducted from such bequests or legacies”, it was held that all present taxes, such as the federal succession tax and state collateral inheritance tax, were to be paid out of the estate, but that the will did not intend that future taxes, such as that on money at interest, should be so paid. It was claimed by the legatee that the bequest was not the sum named in gross but the income therefrom and that the latter must therefore be protected from diminution by taxes during the whole period of the trust. It was held, however, Mr. Justice Mitchell writing the opinion of the Court, that “this is a very strained construction, not within the natural meaning of the words or any apparent intent of the testator. . . . He did not give whatever money might be necessary to produce a definite income, free from deduction for taxes, but a definite sum free from ■deductions at the time of payment, but necessarily contingent as to income upon the rate of interest obtainable and the taxes that may or may not be imposed on the investment. These the testator could not anticipate with any certainty and his will shows no intention to provide for.”
The cases cited by appellant are not in point. They deal either (1) with a lease of the .property of one railroad company to another providing that the lessee should “pay all taxes . . . upon the yearly payments” to be made by the lessee, and for which taxes the les[36]*36sor “-would otherwise be liable”. (North Pennsylvania R. R. Co. v. Philadelphia & Reading Rwy. Co., 249 Pa. 326, 95 A. 100); or (2) with a lease of one street railway company to another providing that the lessee should “pay all taxes . . . for which [the lessor] would otherwise ... be liable ... on account of its . . . earnings ... or profits.” (Philadelphia City Passenger Rwy. Co. v. Philadelphia Rapid Transit Co., 263 Pa. 561, 107 A. 329); or (3) with a lease by one railroad company to another providing that the lessee should pay all taxes upon the rent reserved by the lessor, for the payment of which taxes the lessor would otherwise be liable. (Philadelphia, Germantown & Norristown R. R. Co. v. Philadelphia & Reading Rwy. Co., 265 Pa. 325, 108 A. 528); or (4) with a ground rent deed providing that the covenantor should “pay all taxes whatsoever ... on the said yearly rent . . .” (Van Beil v. Brogan, 65 Pa. Superior Ct. 384, affirmed sub nomine Erlich v. Brogan, 262 Pa. 362, 105 A. 511). Apart from the fact that those cases involved interparty agreements and cannot be considered authorities where the problem concerns the interpretation of the meaning of the words used in a will, the express obligation of the covenantor in each of them was to pay the taxes on the rent, earnings or profits which the covenantee would otherwise have to pay, which is quite different from the provision here under consideration; decedent’s will does not thus specifically provide that the estate should pay the taxes on the income received by appellant from the trust and which she would otherwise be obliged to pay.
Decree affirmed at costs of appellant