Had this been a case where in the first instance the testatrix had given her husband but a life estate, and under an ambiguous provision of the will we were seeking out testatrix's intent and were required to determine whether testatrix intended, after the decease of her husband, to pass her estate to her relatives or to her husband's second wife, our problem would have been comparatively uncomplicated. It must be conceded that no intent could ordinarily be attributed to any married woman to bequeath her estate to her successor. But this is not the problem which confronts us. This holographic will first gives to her husband an absolute estate and appoints him executor. What we are required to decide is whether the subsequent provisions in the will in clear and unambiguouswords have cut down the husband's absolute estate to a lifeestate. Judge REESE, in the court below, in a most convincing and learned opinion ruled that the absolute estate of the husband had not been cut down to a life estate.
In expounding a will it is not what the testator may have meant, but what is the meaning of his words: Weidman's Ap., 2 Walker 359; Ludwick's Estate, 269 Pa. 365, 112 A. 543; Conner'sEstate, 346 Pa. 271, 29 A.2d 514; Loughran's Estate, 144 Pa. Super. 88, 18 A.2d 676.
The will reads as follows: "I, Jennie A. Keefer, make my will as follows. I will devise and bequeath all my estate real and personal to my beloved husband Edgar C. Keefer and appoint him to be the executor of this my will. In case of the death of both of us, Robert L. Sutliff to get 1,000 dollars and Minnie C. Deardorff or her heirs *Page 289 now residing at 305 E. Queen St. Chambersburg, the estate of real and personal property and appoint the First Nat. Bank of Sbg. as the executor of this my will.
JENNIE A. KEEFER
Jan. 22, 1936"
No one can question that under this language the quality of the estate initially bequeathed to the husband was an absolute estate in fee. The sole question is whether the words which immediately follow, viz: "In case of the death of both of us . . ." are so clear and unambiguous that they manifest testatrix's intent to cut down the husband's absolute estate to a life estate. In my opinion they do not.
The principle is well settled that a reduction in quantum of a previous bequest may only be accomplished by use of words clearly and unambiguously expressed. In Harris Estate, 351 Pa. 368, 41 A.2d 715, Mr. Justice LINN said (page 377): "The rule is that a testator may by words, standing alone, give an absolute estate and then, by subsequent words, may cut down that absolute estate, but such a reduction in quantum may be made only by words clearly and unambiguously requiring that result: Chestnut v. Chestnut, 300 Pa. 146, 151 A. 339; Haydon's Estate, 334 Pa. 403, 6 A.2d 581; Byrne's Estate, 320 Pa. 513,181 A. 500." In Haydon's Estate, 334 Pa. 403, Mr. Justice DREW said (page 406): "The principle is well settled that an absolute estate will not be cut down by subsequent provisions in the will unless the testator has expressed a clear and unambiguous intention to do so: Buechley's Estate, 283 Pa. 107; Cross v. Miller, 290 Pa. 213; Byrne's Estate, 320 Pa. 513."
The pivotal question is what did the testatrix intend, following the bequest of an absolute estate to her husband, by the use of the words "In case of the death of both of us. . . ." I disagree with the conclusion of the majority that "she clearly contemplated the time when both she and her husband would be dead." We have repeatedly held that where an absolute estate is bequeathed, *Page 290 followed by a gift over in the event of death, such words will be construed as referring to death in the lifetime of the testator. When testator uses the suppositive "if", "should", or "in case of" he is not referring to the inevitable death of B, but rather the death of B within a limited period. He does not refer to death as an event which is certain to occur, but as an event which may or may not occur. Caldwell v. Skilton, 13 Pa. 152; Holmes v. Stanhope, 217 Pa. 63, 66 A. 146; Rapson'sEstate, 318 Pa. 587, 179 A. 436. In Rapson's Estate, supra, Mr. Chief Justice FRAZER said (page 589): ". . . since there is an express and unambiguous gift of the residue to testatrix's husband, a mere doubt as to the effect of subsequent clauses in reducing the quantum of his interest must be resolved in favor of the vesting of an absolute estate in him." In Restatement, Property, section 263, comment a, it is stated: "A limitation which comes within the rule stated in this Section refers to 'death,' not as an event which is certain to occur, but as an event which may or may not occur. Since death itself is an event certain to occur, the contingency, thus provided for, can only exist with respect to the timing of the death referred to, that is, with respect to whether this death will occur before some other event. When the limitation fails to specify this other event, the death of the testator is the only other event to which the death of the devisee can reasonably be related. Consequently, in such limitations the substitutional construction provides the only mode of giving effect to the contingency expressed by the language of the limitation."
It is quite within the realm of possibility that the words "In case of the death of both of us" were used by testatrix in contemplation of their simultaneous deaths in a common disaster, or death as a result thereof. I cannot agree with the statement in the majority's opinion that ". . . the simultaneous death of husband and wife is of such rare occurrence that a husband or wife in making a will seldom think of that contingency" and *Page 291 that when they do they express their intent in plain language. An examination of joint and reciprocal wills over the past decade, in our records, will reveal that this contemplation is apparent with increasing frequency, and such intent is not always expressed in clear and unambiguous language. Whether a husband and wife are, or are not, extensive travelers seems immaterial. The public news increasingly report such common disasters from fires, explosions, and travel in automobiles, airplanes, railroad trains, steamships, etc. I disagree that in these modern days married testators do not contemplate death in a common disaster.
In Rapson's Estate, supra, common disaster was clearly in testatrix's contemplation. She used words much stronger than those now before us. Her words were "In case of my husband dying before me, or (in a common disaster) or 'after me' ", we ruled that a preceding absolute gift to the husband had not been cut down.
But whether testatrix by use of the words "In case of the death of both of us" meant deaths in a common disaster, or (as held by the majority) upon the inevitable deaths of both, or as an event which may or may not occur, she has not expressed her intent in the clear and unambiguous language required to cut down the absolute estate previously given to her husband:Harris Estate; Haydon's Estate, supra. That such words are ambiguous is most apparent. Indeed Mr. Chief Justice MAXEY, in the majority opinion says "But there was ambiguity in the termsused in this will . . ." and then resolve the ambiguity in favor of a construction that by the words used in all the surrounding circumstances testatrix intended the contingency to be that of the inevitable death of both. This, to my mind, is in clear disagreement with our previous cases.
For the foregoing reasons, I dissent, and would affirm the decree of the learned court below. *Page 292