The will provides:
Myerstown, Pa. Jan. 4, 1936.
Elmer L. Haak To Annie
Annie never was life more uncertain and death more certain to me than now — after returning from our southern trip — after seeing all those accidents along the road.
So I wish and will that you share only with my Estate as the Law provides as if there were no Will, to avoid all discrepancy, but the distributing half to be divided as I will enter off and on in a book in this desk, and whatever writings you may find, to relatives etc.
If any remains, to be divided equally among Mary Leob and the yard employees who were in my employ at least two years at my death.
ELMER L. HAAK
The opinion of the Court seems based on the proposition that the will contains no residuary clause and that the third paragraph is too uncertain to pass anything to the legatees designated in it. The third paragraph, *Page 99 on its face, is an adequate disposition of any property not passing by prior provisions. In the second paragraph, testator gave to his wife what she would take under the Intestate Laws; the phrase "but the distributing half," next used by him in completing the sentence, therefore meant what was left after paying debts, taxes and necessary legal expenses, and distributing to the widow what the law would have entitled her to take if there had been no will. The proposed beneficiaries, identified in the second paragraph by the words "relatives etc.," were unable to produce any testamentary instrument showing that at his death they should receive anything; without such instrument, the legacies to "relatives etc." were, in the words of section 15(c) of the Wills Act (considered later) "otherwise incapable of taking effect" and under that section of the act fell into the residue. The third paragraph shows testator intended to, and in fact did, provide disposition of all the property not otherwise passing under his will. The will is his declaration that he intended to die testate and not partially intestate. He said and meant that "If any remains," which is the same as saying, If I have not disposed of all my property to my wife and "relatives etc.," I give what "remains" to the parties designated in the third paragraph. It is an adequate expression of a residuary provision. What constitutes a residuary clause was recently considered in two cases. InIngham's Estate, 315 Pa. 293, 172 A. 662, the words were "What is left of my money after my debts are paid, I wish to give to . . ." The question was whether the words "What is left of my money" included all her cash, stock and bonds, together with a remainder interest in her father's estate, not disposed of earlier in her will. Mr. Justice DREW said, at p. 296, "Hence, when she employed these words at the end of her will, the natural location of a residuary clause, there can be no doubt that she meant thereby to dispose of the entire residue of her estate after the payment of her debts and *Page 100 the satisfaction of the legacies enumerated in the preceding clauses." In Bricker's Estate, 335 Pa. 300, 6 A.2d 905, the words were "The balance, if any, to be divided into ten equal parts between . . ." The testator had made charitable bequests which failed because of his death within a month of the execution of the will, whereupon next of kin made claim; the orphans' court, having concluded that the will contained no residuary clause to transfer the void legacies, held next of kin were entitled to an account. That conclusion was reversed. Speaking of a residuary clause, Mr. Justice STERN said, at p. 303: "A residuary clause is one which covers all of the estate not disposed of after providing for debts and particular legacies and devises. No technical mode of expression is necessary to constitute such a clause. 'Balance' is the vernacular for the legal phrase 'rest, residue and remainder': see Thompson's Estate, 237 Pa. 165, 169; Taylor's Estate,239 Pa. 153, 163. The word 'balance' in the fifth paragraph of this will must be interpreted as meaning 'balance of the estate,' there being no reason why it should be restricted to the balance of the fund derived from the items mentioned in the third paragraph: see In re Hayes' Will, 263 N.Y. 219,188 N.E. 716. Whatever ambiguity exists must be resolved in accordance with the principle that a broad rather than a narrow construction of a residuary clause is favored in order to avoid intestacy, it being presumed that a testator intends to dispose of his whole estate: Fuller's Estate, 225 Pa. 626, 629;Carson's Estate, 130 Pa. Super. 133, 138."
In Ingham's Estate, 315 Pa. 293, 296, 172 A. 662, we said: "It is a well settled rule of construction that a will is not to be interpreted so as to produce an intestacy as to any part of the testator's estate, if it may reasonably be construed so as to avoid such a result. . . ." But it will be observed that, notwithstanding the efforts of the testator to avoid intestacy, his entire estate, by the judgment of this Court, passes precisely as it *Page 101 would have passed if he had made no will; his widow receives what she would have received if there had been no will, and the next of kin receive the residue under the Intestate Law.
Section 15(c) of the Wills Act, 1917, P. L. 403, 20 PS Sec. 253, provides: "Unless a contrary intention shall appear by the will, such real or personal estate, or interests therein, as shall be comprised or intended to be comprised in any devise or bequest in such will contained, which shall fail or be void by reason of the death of the devisee or legatee in the lifetime of the testator, or by reason of such devise or bequest being contrary to law, or otherwise incapable of taking effect, or which shall be revoked by the testator, shall be included in the residuary devise or bequest, if any, contained in such will. In any case where such devise or bequest which shall fail or be void, or shall be revoked as aforesaid, shall be contained in the residuary clause of such will, it shall pass to and be divided among the other residuary devisees or legatees, if any there be, in proportion to their respective interests in such residue."
The "relatives etc.," mentioned in the second paragraph, are in the same legal position as if testator had set forth in his will their names and the property he desired to give them and had afterwards cancelled the provision by running his pen through it or by more formal revocation, and left the third paragraph untouched. The words of that paragraph, "If any remains," clearly state his intention that what he had not given, or had withheld, or as to which he had subsequently changed his mind, should pass to the parties designated in the third paragraph. Under section 15(c) these parties are entitled unless, in the words of the act, "a contrary intention shall appear by the will." Certainly no intention to make the third paragraph ineffective appears. There is no expression of intention to exclude from the residue what, as the testator is presumed to have known, would naturally fall into it. In *Page 102 Webster's New International Dictionary, residue is defined as "that which remains. . . ." In Ingham's Estate, 315 Pa. 293,172 A. 662, the words "What is left . . .," and in Bricker'sEstate, 335 Pa. 300, 6 A.2d 905, "The balance if any," were held to constitute residues. To read the third paragraph, as the majority of the Court appears to read it, as a mere continuation of part of the single sentence which constitutes the second paragraph and then, having read them as one, to treat the combination as a single provision, is not to give adequate effect to the testator's wording, his punctuation and the order adopted by him for expressing the disposition of his property and his obvious intention not to die intestate. After making, in a single sentence, provisions for his wife and "relatives etc.," he came to the end of his will save for the contingency of possible incomplete disposition of all his property; he had reached the point which has been described as the "natural location"* for the residuary clause and then he wrote such a provision. The majority has concluded, as I understand it, that the third paragraph is not a residuary clause but a mere bequest of such property as might subsequently be found not to have been given to "relatives etc.," and that, since these "relatives etc." have been unable to produce a probatable instrument under which they can take, there is nothing that can remain for the parties designated in the third paragraph. But Wood's Estate, 209 Pa. 16, 57 A. 1103, is clearly against this interpretation. Wood's will provided that "Everything not otherwise specified . . ." should go to certain legatees. Among the gifts specified were legacies to charities which lapsed because the will was not witnessed. Next of kin claimed the lapsed legacies on the theory that the provision quoted was not a residuary clause but a disposition of only what was *Page 103 not specified; but it was held in an opinion by Judge PENROSE, that the provision in question was a general residuary clause into which the lapsed gifts must fall. On appeal, this Court adopted Judge PENROSE'S opinion which contains a passage applicable to the present appeal. He said, "There may, of course, be a limited or restricted residuary gift which would carry nothing outside of the designated limits; but in the absence of clear evidence of intention to restrict, it is assumed that the testator intended the residuary clause in a general sense. Lord ELDON declared in Bland v. Lamb, 2 Jacob Walker, 399, that 'Very special words are required to take a bequest of a residue out of the general rule,' and in Leake v.Robinson, 2 Meriv. 362-392, Sir WM. GRANT said, 'It must be a very peculiar case indeed in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue itself be ill given,' this being quoted with approval by Judge KENNEDY in Woolmer's Estate, 3 Wharton, 477."Wood's Estate, 209 Pa. 16, 17, 57 A. 1103.
I would affirm the order appealed from.
Mr. Chief Justice SCHAFFER and Mr. Justice MAXEY concur in this opinion.
* Ingham's Estate, 315 Pa. 293, 296, 172 A. 662; Page, Wills (2d ed., 1928), section 868.