I cannot concur in the majority view, because, by a careful study of the ninth paragraph of the will and the sixth paragraph of the fourth codicil, it is clear to me that the learned court below correctly decided that the income, and ultimately the principal, of the residuary estate is distributable to the children of testator's son, George W. Elkins, and his daughter, Eleanor Elkins Rice, per stirpes; that is to say, that the appellants, the four children of George, take one-half, and the appellees, the two children of Eleanor, take the other one-half. That this was the intent of the testator is obvious from a reading of the will and its codicils, without the necessity of resorting to conjecture or speculation.
The vital issue in this case is as of what time did testator contemplate that Ida and her descendants would fail in order to enable George's children or descendants of his deceased children to take. Was it subsequent to the death of the widow of testator, as is consonant with the eighth clause of the ninth paragraph of his will? Or did he abandon this intention by the sixth paragraph of the fourth codicil, as is asserted by the majority, and mean the failure of Ida and her descendants at any time?
Testator, in the third clause1 of the ninth paragraph of his will, states, in as clear language as can be used, *Page 208 that the principal of his residuary estate was to be divided into shares at the death of his widow, and not before. Here testator makes it plain that it is his intention that during the lifetime of his widow, the interest in the principal of a child surviving him was subject to the contingency that the child or his or her descendants must survive the death of the widow. No interest whatsoever passed in the principal or its income to Ida since she died without descendants prior to the death of her mother. This fact is conceded by the majority.
The clear purpose of the eighth clause2 of the ninth paragraph of the will is to avoid an intestacy as to the share of a child of the testator or his or her descendants who survive the testator's widow and thereafter die without descendants, and thus in this clause it is provided that, under such circumstances, this share is to be held in trust for the other children of testator then living and descendants then living of deceased children. It was testator's intention to change this eighth clause of the ninth paragraph by the sixth paragraph of the fourth codicil,3 so that in case a daughter of his or her *Page 209 descendants survived his widow and died without descendants, this share, instead of being held in trust for his other children then living and descendants then living of deceased children, as originally provided by the will, was to be held in trust solely for the children or descendants of his son George. While the testator, in this paragraph of the codicil, does not actually quote verbatim the eighth clause of the ninth paragraph of the will, nevertheless he therein recites the substance thereof so clearly that it is unmistakable that it is that clause of the will alone, and not the provisions of the entire ninth paragraph, as held by the majority, to which he refers as the part he intended to alter. Testator could not have expressed more clearly a limited change in a particular provision of his will. That this is the only portion of the will he intended to change is further substantiated by the following words contained in the codicil: "I now alter and modify said provision of said will to this extent." (Italics added.) Testator having made this specific change, that negatives by implication an intent to make any other in the provisions of his will: Line's Estate, 221 Pa. 374, 379.
Bearing in mind the rules of testamentary interpretation that a will and codicil must be construed together and that a codicil shall disturb the disposition of the original will only where its provisions are plainly inconsistent with the will(Vernier's Estate, 282 Pa. 194, *Page 210 198); that if a codicil is subject to two interpretations, one of which follows the main purpose as expressed in the will and the other is not consistent with it, the consistent interpretation will be adopted, because, generally speaking, there is no presumption that a codicil is intended to change a will; and that a codicil should not be held to interfere with any of the specific provisions of the will, unless its language naturally and obviously produces such result, or the terms of the codicil expressly recognize the alteration (Rainear'sEstate, 304 Pa. 539, 543, 544), I can find nothing in the codicil here under consideration indicating the slightest intention on the part of the testator to abandon the particular plan for distribution so carefully set up in the ninth paragraph of his will. That plan was that at the decease of the widow the principal should be divided into as many shares as at that time there should be children then alive and children then dead, represented by descendants then alive, to subdivide the share falling to each set of descendants of a child then dead among them per stirpes, upon the principle of representation. The construction given the sixth paragraph of the fourth codicil by the majority opinion, however, results in the distortion of this scheme so that at the death of the widow the principal will be divided into as many shares as at that time there shall be children then alive; children then dead, represented by descendants then alive (the share falling to each of the descendants of a child then dead to be subdivided among them per stirpes, upon the principle of representation); and children then dead not represented by descendants then alive (this latter share being the share Ida would take if alive, which under the majority interpretation will go to George's children or their descendants).
To arrive at the true intent of the testator, the codicil, which amends only the eighth clause of the ninth paragraph, must be read in conjunction with the prior clauses of that paragraph. The eighth clause has no *Page 211 application to the division of the residuary estate into shares, nor does the codicil. By the third clause of that paragraph the time for distribution was fixed at the death of testator's widow and it was not altered by the codicil. The eighth clause, in order to avoid intestacy under the circumstances, merely directed the course of the shares already created in the contingency that a daughter, a life tenant, who survived the widow, died without descendants. It had no application whatsoever to a child who died in the lifetime of the widow without descendants, because such a child never became a life tenant of any share, and the codicil did not make any change therein, except as to the share of a child of testator, or its descendants, who survived the widow and thereafter died without descendants.
From the preamble of the dispositive part of this fourth codicil, it is evident testator uses the term "any daughter" to describe a daughter who had become a life tenant. This is manifest from a reading of the eighth clause of the ninth paragraph of the will to which the preamble refers. It logically follows that when testator in the dispositive part of that codicil uses the term "any daughter," he signifies thereby only a daughter who has become a life tenant. The interpretation of the majority does great violence to the express language employed by the testator by, in effect, inserting after the words "any daughter" the qualifying phrase "whether she be a life tenant or not."
The learned President Judge of the Orphans' Court expressed my views when he aptly said in his adjudication in this case: "It being clear that the division into shares was intended to be effected after the death of the widow and not before, and, the eighth clause of the ninth paragraph of the will, in perfect sequence, providing what should become of a daughter's share, so determined at that time in case the daughter died without descendants, and the preamble to this dispositive part of the sixth paragraph of the fourth codicil clearly reciting *Page 212 the said eighth clause of the ninth paragraph of the will for alteration, it follows that no case contemplated by the dispositive part of the sixth paragraph of the fourth codicil ever arose and the codicil therefore became inoperative."
The wills which were the subject of adjudication in the cases cited in the majority opinion differ materially from that with which we have here to deal, and therefore afford no assistance whatever in ascertaining testator's intention in the instant case. Where the true intent of a testator can be gathered from the words he actually uses, as is so in the instant case, it is needless to employ other cases in an attempt to shed light on his meaning. It is a well established principle in all will cases that precedents are of little aid in ascertaining the actual intention of testator, for the words of the particular instrument under consideration must control: Mifflin's Estate,279 Pa. 429, 432; Kidd's Estate, 293 Pa. 56, 61.
It seems to me that the majority opinion disregards one of the contingencies necessary to vest any gift in the children of George as direct legatees; that is, that a daughter or her descendants must survive the widow. Ida, having died in the lifetime of her mother without descendants, the share which might have passed to George's children, had she or her descendants survived, passed by the ninth paragraph of the will, when read in conjunction with the codicil, to George and Eleanor upon the death of the widow. There is nothing inconsistent with this plain expression of testator's intention, and I would, therefore, affirm the decree of distribution of the learned court below.
Mr. Chief Justice SCHAFFER joins in this dissent.
1 "IN TRUST, as to the principal of my residuary estate, subject of course to the aforesaid annuities, at the decease of my wife, to divide the same into as many parts or shares as, at that time, there shall be children of mine then alive, and children of mine then dead, represented by descendants then alive, and to subdivide the share falling to each set of descendants of a child of mine then dead, amongst them 'per stirpe,' upon the principle of representation."
2 "IN TRUST, as to the half share held in trust for any son of mine, and as to the whole share held in trust for any daughter of mine, in case there shall be no descendant of a life tenant alive at his or her decease, to divide the principal of the share into as many sub-parts or sub-shares, as, at the time of the decease of such life tenant, there shall be children of mine then alive, and children of mine then dead, represented by descendants then living, and to subdivide the share falling to each set of descendants of a child of mine then dead, amongst them 'per stirpe,' upon the principle of representation. . . ." (Italics added).
3 "By my will I have directed that in case at the time of the decease of any daughter of mine there shall be no descendant of hers then alive at the time of her decease capable of taking, that the principal of the share of such daughter so dying shall be divided into as many sub-parts or sub-shares as, at the time of the decease of such daughter there shall be children of mine then alive and children of mine then dead represented by descendants then living and shall be subdivided as to the share of each set of descendants of a child of mine then dead amongst them per stirpes, upon the principal of representation. I have further made certain directions as to the payment or holding IN TRUST of said shares.
*Page 213"I now alter and modify said provision of said will to this extent.
"I direct that if at the time of the decease of any daughter there shall be no descendants of hers then living that the share of said daughter shall be divided into as many parts or shares as at that time there shall be children of my son George W. Elkins then living and children of his then dead represented by descendants then living, and shall be subdivided as to the share of each set of descendants of a child of my said son then dead amongst them per stirpe upon the principle of representation." (Italics added).