Plumly Estate

50 Pa. D. & C.2d 700, 1970 Pa. Dist. & Cnty. Dec. LEXIS 68
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedNovember 30, 1970
Docketno. 603 of 1936
StatusPublished

This text of 50 Pa. D. & C.2d 700 (Plumly Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plumly Estate, 50 Pa. D. & C.2d 700, 1970 Pa. Dist. & Cnty. Dec. LEXIS 68 (Pa. Super. Ct. 1970).

Opinion

LEFEVER, J.,

This case is before the court on exceptions to the adjudication of Judge Bolger. The pertinent portions of his adjudication follow.

“Eugene K. Plumly died June 23, 1935, leaving a will which was duly probated. By that will he gave his residuary estate to his trustees in trust to pay one-half of the net income therefrom to his wife for life and the other one-half of the income in equal shares to his three children for their respective lives. On the death of the wife her share of income was also payable to testator’s three children for life. Upon the death of testator’s sons, the income payable to the son so dying was payable to the son’s wife for life and upon the death of either son and the wife of that son that share of income was payable to all the children and the issue of such son during the lives of the testator’s two grandchildren, Eugene Howard George and Francis L. Plumly, Jr. and the survivor of them; upon the death of testator’s daughter, her share of income is to be paid to her children during the lifetime of the testator’s aforementioned two grandchildren and the survivor of them and upon [702]*702the death of the survivor of the testator’s wife, his three children and above named grandchildren the estate is to be divided equally among the testator’s then living grandchildren and issue of deceased grandchildren per stirpes or in default of issue then to the University of Pennsylvania.
“This account is filed by reason of the death of Alice W. Plumly, widow of George Plumly, on January 14, 1970 . . .
“When the testator died he left surviving him a wife, two sons, George and Francis, and a daughter, Eugenia. Upon the death of the wife the income was paid to the three children, and upon the death of George the income from his share was paid to his widow, Alice. Eugenia, the daughter, died in 1954 survived by a son, Eugene (one of the measuring lives), who died in 1959. Since his death the share of income payable to Eugenia has been paid to Alice, the widow of George, and to Francis Plumly, the sole surviving child of the testator. Francis Plumly, Jr., testator’s grandson and a measuring fife, also survives.
“At the audit a question arose as to the proper distribution to be made in this estate by virtue of that part of Article Fifth of testator’s will which reads:
‘And upon the further trust on the death of any of my children without leaving any child or other issue living at the time of the death of the survivor of my said two grandchildren, Eugene Howard George and Francis L. Plumly, Jr., the share of the said net interests, income, rents and profits which would have been payable to the child so dying, shall be divided, distributed and paid in equal shares to and among my other children who may be living, the issue of such of them as may be deceased taking the same share as their parent would have taken if living, until [703]*703the time of the distribution of the principal of my estate as above provided; . . .’
“The Administrator of the Estate of Eugene H. George contends that the will fails to dispose of the share of income payable to a child who dies without issue during the term of the trust, and to avoid such intestacy it would be necessary for the court to supply the words omitted by the testator; something the court is without power to do citing Colin’s Estate, 388 Pa. 483.
“The accountant, on the other hand, contends that the court need not supply words of omission nor raise a gift by implication; that the intent of the testator can be garnered from the words that appear even though the syntactical construction of the will leaves something to be desired. If we understand his interpretation of the above clause it is: ‘Upon the death of Eugenia without leaving Eugene Howard George surviving at the death of Francis Plumly, Jr., the share of the income payable to Eugenia shall be divided, distributed and paid in equal shares to and among my other children who may be living,’ in this case testator’s remaining child, Francis Plumly.
“With this interpretation we agree. Eugenia having died without issue before the death of the named grandsons, she will be as dead without issue after their decease. Once issue and ancestor are extinct, issue cannot reappear. Poor language construction or punctuation should not stand in the way of carrying out the testator’s intent. The testator did not intend that it was necessary that Eugenia survive the named grandson and then die without issue. We search for testator’s intent among his words, and while ‘the search is confined to his language, . . . its object is still his meaning’: Woelpper’s Appeal, 126 Pa. 562. ‘When a decedent drafts a last will . . . [704]*704he is presumed, in the absence of an indication to the contrary, to have intended to dispose of his entire estate and not to die intestate as to any part of it.’ Farrington Will, 422 Pa. 164. The rule to be applied in the interpretation of wills is one that promotes testacy not one to prevent it: Fisher’s Estate, 302 Pa. 516. The entire structure of the testator’s residuary clause indicates an intent to have the income of his estate paid to his wife, children and their issue and upon the termination of the trust if there are no members of his family surviving to take, it is only then that the testator expresses an intent that his estate shall pass to those outside the family line. Under the circumstances an interpretation that an intestacy resulted would have the effect of passing income to those outside the bloodline and at some later date have the property come back into the family line. From a reading of the entire residuary clause it is highly improbable that the testator intended such a result. Accordingly, we find from the words of the testator that his intention was to confine the benefits of his residuary estate to his children and their issue.”

In Carter Estate, 435 Pa. 492, 496 and 497 (1969), the Supreme Court, speaking through Mr. Chief Justice Bell, stated:

“The law and the legal principles governing the interpretation of wills is well settled, but their application to poorly or ambiguously drawn wills (especially to holographic wills and lengthy testamentary trusts) is often difficult. The pertinent principles may be thus briefly summarized: A testator’s intent, unless unlawful, shall prevail; that intent shall be ascertained from a consideration of (a) all the language contained in his will, and (b) his scheme of distribution, and (c) the circumstances surrounding him at the time he made his will, and (d) the existing facts; [705]*705and (e) canons of construction will be resorted to only if the language of the will is ambiguous or conflicting or the testator’s intent is for any reason uncertain.”

This doctrine was reaffirmed on October 9, 1970, in Estate of Augustus E. Jessup, January Term, No. 280, 1970, 441 Pa. 365 (1970).

Applying these principles of law, the intent of testator in the instant case is readily ascertainable from an analysis of all the language in his will and his scheme of distribution. Testator’s dominant intent was to benefit his family fine to the exclusion of all others. The only situation in which he intended his estate to go out of the family line was the dual, remote contingency: (1) that no issue would survive the last designated measuring life and (2) that his wife would fail to dispose of the remainder through her will.

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Related

Jessup Estate
276 A.2d 499 (Supreme Court of Pennsylvania, 1970)
Carter Estate
257 A.2d 843 (Supreme Court of Pennsylvania, 1969)
Vandergrift Estate
177 A.2d 432 (Supreme Court of Pennsylvania, 1962)
Conlin Estate
131 A.2d 117 (Supreme Court of Pennsylvania, 1957)
Keffalas Estate
233 A.2d 248 (Supreme Court of Pennsylvania, 1967)
Fisher's Estate
153 A. 736 (Supreme Court of Pennsylvania, 1930)
Chandler v. Woelpper
17 A. 870 (Supreme Court of Pennsylvania, 1889)
Estate of Rowland
21 A. 735 (Supreme Court of Pennsylvania, 1891)
Farrington Will
220 A.2d 790 (Supreme Court of Pennsylvania, 1966)

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Bluebook (online)
50 Pa. D. & C.2d 700, 1970 Pa. Dist. & Cnty. Dec. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plumly-estate-pactcomplphilad-1970.