Wharton Appeal

96 A.2d 104, 373 Pa. 360, 1953 Pa. LEXIS 313

• Court: Supreme Court of Pennsylvania
• Decided: April 1, 1953
• Docket: Appeals, 307, 308 and 309
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearne,

The single question raised by the three appeals, which were argued together, concerns the exercise of powers of appointment by Joseph S. Lovering Wharton (hereinafter called Joseph, Sr.), in his own will, of appointive trust estates under the respective wills of his first wife’s father, of his first wife, of his maternal grandfather and of his mother.

Appellant is Katherine O. Wharton, widow and appointee under the will of her deceased husband, Samuel Brinton Shoemaker Wharton, a son of Joseph, Sr. Under the will of Joseph, Sr., Samuel was given a testamentary power of appointment over the corpus of his share of the appointive estates. Upon the death of appellant’s husband in 1943, she received, under the power of appointment given her husband, the share of corpus which was then due. Appellant contends, however, that at the termination of the trusts in 1952, she is also entitled to receive the distributive share of corpus of Samuel’s trust estate as one of the “persons . . . who would ... be entitled to receive the income” from the appointed trusts under the will of Joseph, Sr. The Orphans’ Court of Philadelphia County decided that she was not so entitled and awarded such corpus to the persons who were, at the termination of the trusts, entitled to receive income. The appeals followed.

The. principles of law involved are plain. The factual situation is complicated because of the necessary recitals of the various trust provisions. When the applicable facts are marshalled and properly analyzed, most of the difficulties in this will construction are dissipated.

The provisions of the various appointive trust estates may be thus summarized: WASHINGTON BROWN, the father of Joseph, Sr.’s first wife, Charlotte, died January 21, 1869. He bequeathed a fund in trust for his daughter Charlotte and gave her a testamentary power of appointment. Charlotte appointed a portion of the corpus for the use of her husband, Joseph, Sr. and gave him a testamentary power of appointment. The fund amounted to $38,058.63. JOSEPH S. LOVERING (maternal grandfather of Joseph, Sr.) died May 8, 1881. He gave a testamentary power of appointment to his daughter, Mary L. Wharton (mother of Joseph, Sr.) over principal which amounted to $72,405.91. The daughter died July 1, 1891, and gave a power of appointment to her son, Joseph, Sr. CHARLOTTE BROWN WHARTON (the first wife of Joseph, Sr.) died September 10, 1886. She created a trust under her will, wherein she gave her husband, Joseph, Sr. a testamentary power of appointment over a trust fund of her individual estate which amounted to $18,-352.11. (This is exclusive of the trust fund under Charlotte Brown Wharton’s father’s will above recited ).

JOSEPH, SR. (Joseph S. Lovering Wharton) possessed of an individual estate and also of the testamentary powers of appointment under the trusts above recited, died March 11, 1931. By item two of the seventh codicil of his will, he exercised the testamentary powers of appointment in this language: . . I give, devise and bequeath the said estates over which .1 have such powers to my Trustees hereinbefore named, and the survivors or survivor of them, and their successors, IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same and to apply the same, both principal and income, upon the trusts and for the purposes and in the manner set forth in Item One of this codicil with respect to my residuary estate; . . .” Referring then to said item one, the gist of his testamentary scheme is: one-half of the principal of the residuary estate was placed in trust to pay the net income for life to his wife, Amelia Bird Shoemaker Wharton (Joseph, Sr.’s second wife, who still survives.) Upon Amelia’s decease the trust was to continue and the income was thereafter to be paid: one-third to his son Charles, one-third to his son Samuel, two-ninths to his son Joseph, Jr., and one-ninth to his grandson, Joseph, 3rd, and at their respective deaths the corpus of their shares was to pass under a general testamentary power of appointment granted to each son and the grandson. The remaining half portion of the residuary estate (not subject to Amelia’s life estate), was directed to be held in trust to pay the income to the named sons and grandsons of Joseph, Sr., in specified proportions, and upon their deaths to pay the corpus in accordance with their respective general testamentary powers of appointment. (Although not presently involved, it is to be noted that from this portion of Joseph, Sr.’s residuary trust estate there was first to be set aside an amount equal in value to the share which each of Joseph, Sr.’s two eldest sons received from their paternal grandfather, Charles W. Wharton, to the exclusion of the third son Samuel, and on which Samuel was to receive the income for life With the corpus to be paid in accordance with Samuel’s testamentary power of appointment.)

As part of the exercise of the various testamentary powers of appointment, Joseph, Sr. directed that in the -event that the trusts continued until twenty-one years from the date of his death (March 17, 1931) the trusts in the appointed estates should then terminate and the corpus paid, “in so far as the same shall not previously have been distributed” to the persons (other than his wife Amelia) who would then be entitled to receive the income. This provision, the construction of which is the cruso of this case, reads as follows: “PROVIDED, NEVERTHELESS, that the trusts created by this Item with respect to the appointed estates shall in any event terminate at the expiration of the period of twenty-one (21) years from and after the date of my death, and the principal of said trusts in so far as the same shall not previously have been distributed according to their terms shall thereupon be distributed and paid over absolutely to the persons, other than my wife, Amelia Bird Shoemaker Wharton, who would then be entitled to receive the income from said trusts if my said wife were then deceased, in the same proportions in which the income would be received by them in such case.”

Samuel, the son, who was appellant’s husband, died December 13, 1943, leaving no issue. He appointed to his wife, appellant, the corpus of his share absolutely. At this date in 1943 the twenty-one years had not yet expired. The trusts had not then terminated and were active. Appellant received (in 1943) one-half of one-third of Joseph, Sr.’s individual residuary trust estate. At Amelia’s decease she will also receive a similar distribution of the remaining half. Joseph, Sr.’s gross estate amounted to $877,972.38 and his residuary estate to $340,608.97, according to the Montgomery County records where the account of the executors was audited and the estate distributed. Appellant also received in distribution in 1943 from the appointed trusts the share of her husband, one-half of oné-third, which was not subject to the life estate of Amelia. Had the trust not been terminated at tbe end of twenty-one years as directed by Joseph, Sr., appellant would have received the corpus of the remaining half upon Amelia’s death..

But under the provisions of the clause of termination, Amelia’s life estate was revoked, as were the sons’ and grandson’s powers of appointment. At such termination the corpus was given to those persons who were then receiving the income. The dispute is over this portion, being a half of one-third of the appointed estates on which Amelia had theretofore enjoyed a life estate, but which life estate was later revoked and the corpus directed to be paid to Joseph, Sr.’s other two sons and grandson to the exclusion of appellant.

Possessing a general power of appointment, Joseph, Sr. could cut down or revoke any absolute interest which he had theretofore given his appointees. We agree that such subsequent provisions require clear and unambiguous language: Hayden’s Estate, 334 Pa. 403, 6 A. 2d 581; Harris Estate, 351 Pa. 368, 41 A. 2d 715; Keefer Estate, 353 Pa. 281, 45 A. 2d 31; O’Reilly Estate, 371 Pa. 349, 89 A. 2d 513; Fink v. Stein, 158 Pa. Superior Ct. 464, 45 A. 2d 249. But the words of the proviso are clear and are not ambiguous. The expression of intent is unmistakable. His plain direction was the termination of the trusts at the expiration, of twenty-one- years, the revocation of his wife Amelia’s life estate, and the revocation of the powers of appoint-, ment given to his-sons-and grandson, He specifically stated, and therefore must have intended,-that the then recipients of income should be substituted as recipients of -their proportionate-shares of- corpus. • -. ■

Appellant contends dhat because.-she received corpus in-1943 as appointee of-her husband- Samuel,.she thereafter-receijed-income on spch distributed corpus, :and therefore possessed -the status, of ;a person “who would-then be entitled to receive the income.” Such an argument while ingenious is spurious. Joseph, Sr. unequivocally directed that the income beneficiaries to which he referred were those receiving income “from said trusts”. Income from appellant’s own estate was not income from the trusts. After appellant received corpus, there existed no assurance that she had or would invest it. She was at liberty to spend it. But even if appellant had invested the principal, and received income therefrom, such income did not constitute interest “ from said trusts”. Such income would be fruit from her individual funds.

Appellant also contends in effect that a will must be read and considered from its four corners. When so considered she points out that the general or overall scheme and purpose which “oozes from every pore of the Will”, indicates that Joseph, Sr. intended equality by his appointment and that any son or the grandson was entitled to income for life and at his death possessed a testamentary power of appointment over the corpus of his share. The principle of presumed equality applies only when the language is lacking in clarity and its meaning is uncertain: Davis’s Estate, 346 Pa. 247, 29 A. 2d 700; Friday’s Estate, 150 Pa. Superior Ct. 352, 28 A. 2d 332. Joseph, Sr. unquestionably did intend equality but ONLY until the proviso became effective. The proviso revolted the life estate of his wife Amelia and terminated the trusts as well as the powers of appointment. But in language crystal clear, Joseph, Sr. directed the distribution of corpus except that already distributed, “. . . to the persons, other than my wife, Amelia Bird Shoemaker Wharton, who would then be entitled to receive the income from said trusts if my said wife were then deceased. . . .” Appellant maintains that because the general scheme was an equal distribution Joseph, Sr. did not intend what his language unequivocally and expressly stated. She contends it is not equality to exclude her from a share of the corpus of the appointed estate solely because the corpus of her husband’s share had been paid to her during the running of the period of twenty-one years, whereas the other sons and grandson receive their shares of corpus solely because they were receiving income when the trusts terminated. Even though the claimed equalization had been intended but had been prevented because of the testator’s or a scrivener’s error of omission, such omission may not be supplied by the court: Rouse Estate, 369 Pa. 568, 573, 87 A. 2d 281. Nor may a court reform or reconstruct a will: Jacobs’ Estate, 343 Pa. 387, 392, 22 A. 2d 744. Rules of construction are unnecessary if the intention is clearly expressed: Hayden’s Estate, 334 Pa. 403, 6 A. 2d 581; Walker’s Estate, 344 Pa. 576, 26 A. 2d 456; Brown Estate, 349 Pa. 23, 36 A. 2d 335. The language of the proviso is clear and unequivocal and therefore needs no consideration of canons of construction.

Upon first consideration it may appear incongruous for Joseph, Sr. to direct that at the expiration of twenty-one years from his death the trusts should terminate, his wife’s life estate be revoked and the corpus paid to income beneficiaries but not to give a proportionate share of corpus to the appointee of a deceased son. We agree with the able and eloquent counsel for appellant that “The purpose of the proviso was to avoid a perpetuity.” We surmise, but do not decide (because this is not before us), that the proviso was motivated by such thought. This illuminates the likely reason for such proviso. The appointed estates were erected respectively in 1869, 1881, 1886 and 1897, the first eighty-three years, the last fifty-five years, and all the appointments of Joseph, Sr. twenty-one years ago. The time fixed by Joseph, Sr. for the terruination of the trusts was twenty-one years after his death, which occurred as stated on March 17, 1931. The rule against perpetuities (a rule of public policy against remoteness), is that executory interests must commence “within the period of a life or lives in being and twenty-one years, allowing for the period of gestationIn trusts created by testator the validity of the disposition is tested by possible events, but where created (as here) by a donee of a testamentary power of appointment, it is the fact and not the possibility which governs. Trusts created after January 1, 1948: Sec. 4 (b), Act of April 24, 1947, P. L. 100, 20 PS 301.4. Remoteness, however, is measured from the creation of the power: Warren’s Estate, 320 Pa. 112, 182 A. 396, and Harrah Estate, 364 Pa. 451, 72 A. 2d 587, and the host of cases therein cited. It is probable that Joseph, Sr. considered that the life estates and the unexecuted powers of appointment were valid, and would remain so during the period of twenty-one years from his decease. In this again he was probably correct, although we do not pass upon this question because it is not before us. A remainderman must take within the period specified in the rule against perpetuities. Joseph, Sr., doubtless considered the possibility that his sons or grandson, through inadvertence or design, might violate the rule in the exercise of their powers of appointment, and thus invalidate the trust in whole or part. In such event the fund would revert to the estates or next of kin of the original donors.

A testator is not required to make an equal division of his estate. He may exclude any one whom he wishes, except a surviving spouse. The reason for the exclusion need not be stated by testator and will not be passed upon by a court. The present testamentary direction in the proviso was expressed in plain and unambiguous language. The will and all the codicils were obviously drawn by a professional scrivener. Beyond all question, Joseph, Sr.’s intent is skilfully, accurately and ably expressed. Whether or not the purpose for the proviso was testator’s true intention is immaterial since the language employed, considered in connection with the entire will and all its codicils, is clear and unambiguous. As this Court has so repeatedly decided, in construing a will, the question is not what testator may have meant but the meaning of the language used. In Farmers Trust Company v. Wilson, 361 Pa. 43, 63 A. 2d 14, Mr. Justice Jones, speaking for the Court, said p. 46: “In Weidman’s Appeal, 2 Walker 359, 361, 42 Leg. Int. 338 (1885), Mr. Justice Trunkey quoted with approval for this court to the effect that ‘The question in expounding a will is not what the testator meant, but what is the meaning of his words.’ That pronouncement has since been reiterated by the courts of this State many times without question down to the present: e.g., Myers Estate, 351 Pa. 472, 474, 41 A. 2d 570; Rosengarten Estate, 349 Pa. 32, 38, 36 A. 2d 310; Brock Estate, 156 Pa. Superior Ct. 616, 619, 41 A. 2d 347; Tombs Estate, 155 Pa. Superior Ct. 605, 609, 39 A. 2d 367; etc. The principle, of course, does not mean that, where a testator’s intention is clear, it may be disregarded on the basis of a literal interpretation of his testamentary words. But, it does mean that a testator’s intent is not to be arrived at by the expounder’s subjective deductions as to what the testator might have meant, or even perhaps did mean, but did not say: cf. Ludwick’s Estate, 269 Pa. 365, 371, 112 A. 543. The scope of the inquiry is limited to the meaning of what the testatrix said.” See also Burpee Estate, 367 Pa. 329, 80 A. 2d 721; Shippen Estate, 170 Pa. Superior Ct. 405, 85 A. 2d 887.

The definitive decrees of distribution in each of the three estates, viz.: Joseph S. Lovering, deceased, Charlotte Brown Wharton, deceased, and Washington Brown, deceased, are affirmed at the cost of appellant.