Wise's Estate

60 Pa. D. & C. 243, 1947 Pa. Dist. & Cnty. Dec. LEXIS 57
CourtPennsylvania Orphans' Court, Perry County
DecidedJuly 12, 1947
StatusPublished

This text of 60 Pa. D. & C. 243 (Wise's Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Perry County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wise's Estate, 60 Pa. D. & C. 243, 1947 Pa. Dist. & Cnty. Dec. LEXIS 57 (Pa. Super. Ct. 1947).

Opinion

Rice, P. J.,

This matter comes before the court on exceptions to the report of an auditor, who had been appointed to pass upon exceptions to the statement of proposed distribution and make distribution of the balance in the hands of the executors according to their account, which was confirmed without exceptions. The distribution statement proposed to divide the balance for distribution among the four children of testatrix as legatees designated in the will, but the exceptions to the distribution statement averred that testatrix was survived also by a grandchild, the daughter of a predeceased son of testatrix, and claimed an equal share for such granddaughter as one of the next of kin of testatrix. The auditor sustained these exceptions and awarded an equal one-fifth share to such granddaughter. His action is now challenged by four exceptions, which do not relate to any findings of fact of the auditor but allege error in his legal conclusions including the grandchild in the distribution.

[244]*244The auditor finds as facts that testatrix, Clara M. Wise, died October 7,1945, without leaving a husband to survive her, but leaving to survive her issue as follows, namely: (1) Harry L. Wise, a son; (2) Carrie I. Eckerd, a daughter; (3) Mary L. Hollenbaugh, a daughter; (4) Clara C. Robinson, a daughter; and (5) Elinor Ann Wise, a minor granddaughter, whose father, Charles L. Wise, a son of testatrix, died June 4, 1938, and who has James C. Wilson as her legally appointed guardian. The auditor also finds as a fact that testatrix had made a last will and testament reading as follows:

“On the first day of October 1943 I do make my will I asked that Harry L wise and Carrie I Eckerd be my Excetters and that they sell all my property personal and real state and pay all bills and divide remainder between the four of you. and if there is here of any thing belong to any of you four each is to have his and if want to devide it if you can suite every body.”
“Mother”

Although the auditor makes no findings as to the nature or characteristics of the will, it is very apparent, from an inspection of the original on file, that it was all written by one person, including the signature, “Mother”, with a lead pencil, on one sheet of paper, and is holographic in character.

In Burtt Will, 353 Pa. 217, 221, the Supreme Court said:

“A will is defined by Blackstone, Vol. II — *449, as ‘The legal declaration of a man’s intentions, which he wills to be performed after his death.’ It has been declared that this definition stands unchallenged for its simplicity and accuracy: McCune’s Estate, 265 Pa. 523; Gibson’s Estate, 128 Pa. Superior Ct. 44.”
“The intention of the testator must be found from what appears upon the face of the will, and, while extrinsic evidence may be admitted to aid or explain, it must always relate to that which is embodied in the will”: Reinheimer’s Estate, 265 Pa. 185, 189.

[245]*245Particularly apposite to the pending case is the following quotation from the opinion in Conner’s Estate, 346 Pa. 271, 273:

“While this is a layman’s will in the handwriting of testatrix, and it is proper to explore the four corners of the will in the light of the circumstances under which it was written to discover her testamentary intent, we must keep in mind that it is not the province of the court ‘to consider what the testator possibly intended, but only what intention is expressed in the language used’: Joyce’s Est., 273 Pa. 404, 407; Biles v. Biles, 281 Pa. 565, 568.”

Hence, to perform the provisions of a will it is necessary to discover the intentions of testator within its four corners. If its language is clear and unequivocal, there is no occasion for construction or interpretation; if ambiguous, the canons of construction may be resorted to for assistance and, in the case of latent ambiguities, evidence may be admitted to identify the subject or the object of the bounty of testator.

“In order that a beneficiary may take under a will, he must be designated therein, either by name or by description, with such certainty that he can be readily identified and distinguished from every other person, otherwise the devise or bequest is void for uncertainty”: 40 CYC 1445, 1446.

“In determining what person or thing may properly correspond to a description in a will, either a beneficiary or property, if the evidence shows the existence of such person or property, the will is not ambiguous, and the person so described and identified must be taken as the intended beneficiary. ‘It is not essentially necessary (sic) that a testator, in his will, name the legatee or devisee in order to give effect to the bequest. It is sufficient if he is so described therein as to be ascertained and identified’:. Dennis v. Holsapple, 148 Ind. 297, 301. The testator need only provide the means of ascertaining the object of his bounty, ac[246]*246cording to the maxim, id certum est quod certum reddi potest. If the description distinguish the claimant from every other person, it is enough: Jarman on Wills (6th ed. by Chas. Sweet, 1901), vol. I, p. 478”: Reinheimer’s Estate, supra.

In 1 Jarman on Wills (5th Am. ed., 1880) 643, 644, 645, it is said:

“In the construction of wills the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators: no degree of technical informality, or grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but, if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence. ... To the validity of every disposition, as well of personal as of real estate, it is requisite that there be a definite subject and object; and uncertainty in either of these particulars is fatal.”

Instances of the application of this rule that a testamentary provision may be declared void for uncertainty are: Kelley v. Kelley, 25 Pa. 460; Womack’s Estate, 253 Pa. 384; Wise et al. v. Rupp, 269 Pa. 505; Mengel’s Estate, 296 Pa. 99; McKean Estate, 159 Pa. Superior Ct. 409.

“Words and limitations may be supplied or rejected when warranted by the immediate context or the general scheme of the will, but not merely on a conjectural hypothesis of the testator’s contention however reasonable, in opposition to the plain and obvious sense of the instrument”: Bender v. Bender, 226 Pa. 607, [247]*247quoted in Jacobs’ Estate, 348 Pa. 387, 392, and Davis’s Estate, 346 Pa. 247, 251. See, also, Riegel et al. v. Oliver et al., 352 Pa. 244, 244.

“They (words) can be supplied only in cases necessary to give effect to the most unquestionable purpose of the testator: 1 Redfield on Wills 470. Hence, if a doubt arises that the change would advance the real intent of the testator, it cannot be made: Annable v. Patch, 3 Pick 360. Besides, in a doubtful case we should adhere, as closely as the language will permit, to the general rules of inheritance: France’s Estate, 25 P. F.

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Related

Burtt Will
44 A.2d 670 (Supreme Court of Pennsylvania, 1944)
French's Estate
140 A. 649 (Supreme Court of Pennsylvania, 1927)
Riegel v. Oliver
42 A.2d 602 (Supreme Court of Pennsylvania, 1945)
Calder's Estate
21 A.2d 907 (Supreme Court of Pennsylvania, 1941)
Biles v. Biles
127 A. 235 (Supreme Court of Pennsylvania, 1924)
Conner's Estate
29 A.2d 514 (Supreme Court of Pennsylvania, 1942)
Davis's Estate
29 A.2d 700 (Supreme Court of Pennsylvania, 1942)
Mengel's Estate
145 A. 715 (Supreme Court of Pennsylvania, 1929)
Jacobs' Estate
22 A.2d 744 (Supreme Court of Pennsylvania, 1941)
McKean Estate
48 A.2d 74 (Superior Court of Pennsylvania, 1946)
Weber Estate
38 A.2d 362 (Superior Court of Pennsylvania, 1944)
Loving Estate
48 A.2d 39 (Superior Court of Pennsylvania, 1946)
Gibson's Estate
193 A. 302 (Superior Court of Pennsylvania, 1937)
Hennershotz's Estate
16 Pa. 435 (Supreme Court of Pennsylvania, 1851)
Kelley v. Kelley
25 Pa. 460 (Supreme Court of Pennsylvania, 1855)
Varner's Appeal
87 Pa. 422 (Supreme Court of Pennsylvania, 1879)
Fosselman v. Elder
98 Pa. 159 (Supreme Court of Pennsylvania, 1881)
Hancock's Appeal
5 A. 56 (Supreme Court of Pennsylvania, 1886)
Estate of Hicks
19 A. 705 (Supreme Court of Pennsylvania, 1890)
Estate of Green
21 A. 317 (Supreme Court of Pennsylvania, 1891)

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Bluebook (online)
60 Pa. D. & C. 243, 1947 Pa. Dist. & Cnty. Dec. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wises-estate-paorphctperry-1947.