I concur in the majority opinion. I neither find nor "create" an ambiguity in the codicil, nor do I "reform the testamentary disposition." I have no difficulty in discovering the testamentary intention in the language the testator used.
As Justice STEARNE concedes in his dissent, in Pennsylvania "there exists no legal requirements for obligatory shares to the surviving spouse." As the majority opinion points out, a widow's "right" to take against her husband's will is merely "a personal privilege." It is "not an asset" of the wife's estate "or a right which" she "can be compelled to exercise."Fleming's Estate, 217 Pa. 610, 615, 66 A. 874.
When Alan Campbell Harris had a French scrivener write this codicil, he was obviously under the impression that there was a certain portion of his estate which Pennsylvania law would immediately upon his death "compulsorily" divert to his widow. This impression was erroneous.
The question comes to this: What was the state of mind of Harris toward his wife's sharing of his estate: Did he consciously will that his wife should have (as the dissenting opinion holds) "a share in his estate, as measured by the Pennsylvania Intestate Act of June 7, 1917," or was his attitude of mind that of submission to what he "understood" would be the state's action regardless *Page 387 of his wish? There is a vast difference between the mental state of willing a thing and of submitting to it. There is exactly the same difference between them as there is in the mental state of a man who wills his own destruction and commits suicide and the mental state of a man who merely recognizes thefact that for him death is inevitable and is resigned to it. He does not want or will death, but he "understands" that some day death will be his "compulsory portion."
Careful consideration of Harris' codicil convinces me that he did not will his widow anything, but that as far as his volition was determinative of the matter, his "whole succession" would "go" to his "relatives in the United States." His statement as to the "compulsory portion" which he "understood" his wife would receive merely amounted to his saying that "whatever portion of my estate the law of Pennsylvania gives to my wife, let it go, I cannot do anything about it." As to what that portion would be, he apparently knew nothing and cared little, for he believed it as much beyondhis control as the "compulsory portion" of his estate which would be consumed in paying inheritance taxes.
We are asked to interpret this codicil as though it read: "I devise and bequeath to my wife such share of my estate as would be hers under the laws of Pennsylvania had I died intestate." For us to thus "interpret" this codicil is to re-write it. We would be no more justified in so interpreting what this testator wrote than we would be justified in interpreting as abequest to the United States of America and to Pennsylvania the following if it had been found in the testator's codicil: "My whole estate not otherwise disposed of shall revert entirely to my relatives in the United States of America, it being understood by me that my estate is compelled to pay certain inheritance taxes to the governments of both the United States and of Pennsylvania." A testator who makes a bequest must make it "animo testandi," that is, with a deliberate intention to make it. A testator *Page 388 who declares that he "understands" (or "it is understood") that the law compels a part of his estate to go to the government is not bequeathing anything to the government. He is merely yielding to "vis major," like a man who submits to the demands of the tax collector. It cannot be correctly said that such a man is "giving" his money to the collector. If, for example, a man in obedience to a court order pays his deserted wife one hundred dollars a month, it is a perversion of language to call those payments "gifts." I think it does equal violence to language to construe as a bequest what this testator said about his wife receiving "the compulsory portion . . . as the successional law of my country prescribes." The words "compulsory" and "prescribes" negative the idea of the testator exercising volition in the matter. Where there is no volition there is no "will."
If this testator really wished his widow to receive that substantial share of his estate which under the law of Pennsylvania is allocated to the widow of a man dying intestate, he could have died intestate (after providing for the specific bequests made in his will), or he could have said in apt language that he willed to his widow that share of his estate which the laws of Pennsylvania declare shall be inherited by the widow of a man dying intestate. That this testator knew how to make bequests is shown by the bequests of money totalling $90,000 which he made in his will written in English.
Instead of this testator's saying that he bequeathed a certain share of his estate to his widow, he simply said in effect: I understand that regardless of what I say, the American law "compels" a portion of my estate to go to my wife. As to this he was mistaken. The compulsion he thought he saw was only conditional, and the condition which would make the "compulsion" operative never came into being. It is not the law standing by itself, but the law coupled with the widow'selection to take against the will which compels the allocation of a certain portion of a testator's property to his widow. *Page 389 When the widow is mentally incapable of making an election, the jurisdictional sovereignty speaking through the appropriate officials decides whether or not incompetent's guardian will beallowed to make the election.
Since Pennsylvania, speaking through an appropriate tribunal, refused the guardian of this widow permission to elect to take against the testator's will, the "compulsion" that this testator envisaged and gracefully yielded to when he made his will is now as nonexistent as it would be had the law giving a widow the right to take against her husband's will been repealed on the day before the testator died.
The words of the codicil show that the testator's "intention" was to bequeath his wife nothing, though he "understood" (or believed) that in spite of anything he could say or do the sovereignty which would administer his estate would take a portion of it and give it to his wife. While I find this intent in the words used (where testamentary intent must be found, if possible), such an intent was also a reasonable one under the circumstances. When this codicil was written on February 3, 1941, the testator's wife was 72 years of age and had been for seven years declared "mentally incompetent." Her condition was incurable. Neither the testator nor his wife had any children.As long as she lived and until her husband should provide forher in his will, she was in possession of a $30,000 annuity from the estate of her husband's grandfather. Why under these circumstances would the testator wish to bequeath his wife anything, knowing that the real beneficiaries of such a bequest would be her relatives residing in Germany?
It is conceded that the heirs of a widow have no rights under a widow's "right to elect" to take against a husband's will and therefore if a widow dies without exercising her "right to elect," that "right" dies with her and her heirs do not inherit it. The widow being mentally incompetent cannot elect to take against her husband's will; and this Commonwealth speaking through *Page 390 its judiciary denied her guardian authority to elect to take against this will because it concluded that owing to the provisions of the will of the testator's grandfather, this mentally incompetent woman's "current welfare" would be better served by her continuing to receive the large income from the estate of that grandfather than by electing to take against her husband's will and thereby (according to the terms of the grandfather's will) deprive herself of further income from the grandfather's estate. That the widow's kindred would ultimately be enriched by permitting this widow's guardian to take against the husband's will was a consideration to which the court which had the guardian's request before it properly refused to give any weight. With their interest the court had no concern. Considering only the widow's interest the court declined to authorize her guardian to take against the will and we therefore have a situation exactly as if the widow was of sound mind and had herself decided not to take against her husband's will.
In the case of Fidelity Trust Co.'s Appeal, 250 Pa. 9,95 A. 320, this court declared: "That in cases of this character the first consideration is the welfare of the widow" . . . and "where, as here, the wife was confined in an asylum before the time of her husband's death, and he provided for her with a full understanding of the circumstances" . . . and "where it is found that the income which she will receive under the will is amply sufficient properly to provide for her comfortable maintenance and support". . . "we cannot say that, where the avowed purpose is to divert part of the property away from these grandchildren to the adopted children of certain of the testator's daughters, the court abused its discretion in refusing permission to take against the will. . . ." The statement of Judge HUNTER, quoted in the dissenting opinion, is most apt here: "The right of a committee in lunacy to take against a will is . . . within the sound discretion of the court. . . . The leaning of the law is in *Page 391 favor of the will, particularly where a taking against it would divert the estate of the deceased from his own blood."
That the testator did not wish to bequeath anything to his widow is indicated by his will dated November 20, 1940, in which he made no mention of his wife. Forty-four days later he executed the codicil. It is a reasonable inference that during those forty-four days he somehow came to the "understanding" that under the law of Pennsylvania his wife would be allocated a portion of his estate regardless of his wishes. He then wrote the codicil declaring his "will" as to where his "whole succession" should "entirely go." The phrase which he added about "the compulsory portion" was merely his way of saying "I am not so uninformed as not to know that despite any wishes or will of mine my wife can lay claim to a part of my estate."
It is said that under the Swiss law a share of the husband's estate goes to his wife regardless of any action on her part, and it is argued that this testator understood that the laws of Pennsylvania operated in the same way. If such was his understanding, it is immaterial to the issue before us. We apply the Pennsylvania law as it is, not as some non-residentthought it was. If, for example, Switzerland had a law expropriating 80% of the estate of a Swiss citizen dying childless, and this testator then residing in Switzerland "understood" that Pennsylvania had an inheritance tax law exactly like the Swiss law it could not be held that if he had said "I understand that the law of Pennsylvania compels a large portion of my estate to be distributed to that state," hethereby bequeathed 80% of his estate to Pennsylvania. A testator's erroneous conception of the "compellable" cannot be judicially translated into a testamentary bequest.
Since the widow takes nothing under this will unless an election is made for her, the whole question comes to this: Did the court below after carefully considering the *Page 392 matter abuse its discretion in refusing permission to the guardian of this mentally incompetent aged woman to take against the will? The majority opinion has demonstrated that it did not but that, on the contrary, its action will promote the "current welfare" of this woman during the presumably brief allotment of life now remaining to her.1
When in writing this codicil Harris focused his mind on (1) the "whole succession" which he had not otherwise disposed of, and (2) his "relatives in the United States" his will (i. e., his volition) was operative. When he focused his mind on the wife who might survive him and on her interest in his estate, his will was not operative at all, for he understood that as to her "compulsory portion" of his estate, the will of the countryof his origin" would be exclusively operative to just the extent that country's law prescribes. I agree that "the codicil does not disinherit the widow," but I am equally certain that it does not "inherit" her. It leaves her in respect to her husband's estate exactly where the law of Pennsylvania places the mentally incompetent widow of a man dying testate. As to his wife and her share in his estate if she survived him, Harris' attitude was passive. When a man intends that his widow shall without any action on her part come into possession of that portion of his estate which would be hers if he died without a will he testamentarily says so in apt words or else dies intestate. This testator did neither.
The majority interpretation gives effect, I believe, to what was in the testator's mind when he wrote this codicil and only by a strained construction of the latter can the view be upheld that "what testator intended to do primarily was to take his estate out from the operation *Page 393 of the Swiss law and to substitute the provisions of the Pennsylvania Intestate Act."
1 It is not necessary to discuss the phrase which ended the codicil, to-wit: "This is the expression of my formal wishes." This was obviously a stereotyped phrase which is merely the equivalent of the phrase which begins most American wills and which reads as follows: "I [name] hereby make this my last will and testament."