Snyder Estate

Dissenting Opinion by

Mb. Justice Pomeboy:

This appeal presents the often difficult problem of construing a will written by a layman. The Court accepts the lower court’s determination that the will of the decedent did not dispose of all of his property, and that he therefore died intestate as to the balance. In so holding, the Orphans’ (hurt Division found that the will contained no residuary clause. I am unable to agree, and respectfully dissent.

*406Our law has long recognized the presumption that one who writes a will intends to dispose of all his estate and not to die intestate as to any portion thereof. Grier Estate, 403 Pa. 517, 522, 170 A. 2d 545 (1961), and cases cited therein. It is the duty of the courts to vindicate that presumption if possible. Braman Estate, 435 Pa. 573, 577, 258 A. 2d 492 (1969); Fuller’s Estate, 225 Pa. 626, 629, 74 Atl. 623 (1909) (wherein the court said: “. . . intestacy is always to be avoided if possible by any fair interpretation of the will.”) See also Restatement of Property, §243, clause (a), comment e (1940). Cf. Bigony Estate, 397 Pa. 102, 152 A. 2d 901 (1959). The residuary clause is, of course, the vehicle normally used by testators to avoid intestacy. In holding that there was no such clause in the instant will, it is my view that the Court has, without adequate justification, ignored the presumption.

Towards the end of his will the testator made the statement, perhaps intended as an instruction, that “money from my insurance policies pays for my funeral.” The next and concluding sentence provides “If there is anything left after this it goes to the children of Mary Lou and David” (the appellants).

The learned court below felt that it was “obvious” that the decedent did not intend the last sentence to be a residuary clause. He thought it clear that it referred only to any excess of insurance money after paying funeral costs. As I view the will, written as it is in-artistically and without paragraphs,1 there is no more reason to limit the last sentence (specifically, the words “if there is anything left over after this”), to *407the sentence which immediately precedes it than there is to regard it as relating to all of the prior dispositions.

This Court’s opinion in Bricker’s Estate, 335 Pa. 300, 6 A. 2d 905 (1939), seems to me to be persuasive in the case at bar. There the question was whether the words “The balance, if any, to be divided into ten equal parts between” ten named persons related only to the immediately preceding bequest, or constituted a residuary clause to the entire will. Speaking' for the Court in holding for the latter alternative, Mr. Justice, later Chief Justice, Steen said: “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. Superior Ct. 133, 138.” 335 Pa. 303.

The lower court advanced two main reasons for its holding. The first was the use of the tentative word “if” to introduce the last sentence. He thought this could only reflect uncertainty as to the sufficiency of the insurance to cover funeral costs,2 not uncertainty as to *408tbe existence of a residuary estate, which at the time of death in fact comprised á0% of the whole. This to me is quite unpersuasive; the amount of anyone’s residuary estate must in the nature of things be uncertain until death occurs, and there are many clearly written residuary clauses which, as matters eventuate, convey nothing to the legatee. That use of the words “if any” is not antithetical to the purpose of a residuary clause is demonstrated, inter alia, by our decision in B richer Estate, supra, 335 Pa. at 303, and Sorschek Estate, 422 Pa. 79, 221 A. 2d 131 (1966). Moreover, in the instant case, the testator’s estate at the time he drew the will exceeded the aggregate amount of specific bequests by only $3,000; it was solely because of the death of his mother, the other joint tenant to real estate, between the date of testator’s will and the date of his own death that the gross residuary estate at testator’s death rose to $13,000.3

The other reason for the lower court’s holding is that it thought the testator had clearly manifested an express intent not to dispose of all of his estate by the use of the word “bulk” in the second sentence. This word, said the court, means “most of”, but not “all”. That this is the common acceptation of “bulk” cannot be denied,4 but to declare that in a homespun document of this kind the word was deliberately used in order to create a partial intestacy seems to me to attribute *409a semantological sophistication to the testator which is quite out of character with the rest of the will. Surely it is an equally tenable construction to consider the word “bulk” as relating to the specific bequests, which accounted for all but $3,000 (i.e., around 92%) of property owned at the time of writing the will. Thus viewed, the testator was in effect saying:

“I hereby leave the bulk of my estate as follows: [i.e., the four specific bequests, plus instruction as to source of funeral expenses.]
“If there is anything left after this [i.e., disposal of the ‘bulk’] it goes to the children of Mary Lou & David.”

It is not necessary to take the position that this is the will’s manifest intent, but it is at least as reasonable as any other interpretation. In short, the will is ambiguous and unclear as to the meaning of “bulk” and as to the scope of the bequest in the last sentence. It is in just this sort of situation that the presumption against partial intestacy is designed to apply; it is in just this sort of situation that extrinsic evidence may be received to show intent. Such evidence may override the presumption, or confirm it. In the case at bar, the latter would have occurred, for the testimony (which the auditing judge felt obliged to disregard) was, in the words of his opinion, “that the decedent and his father [appellee] were not on good terms and that the decedent was friendly to the minor children, Lynn Christine Britton and Brian Lee Florek [appellants]”.

To buttress its holding, the majority relies on the well-known rule that “the findings of fact of the auditing judge, sitting as a chancellor, which are based on competent and adequate evidence are controlling . . . [on] appellate review.” This proposition, however, is not here applicable. It pertains to cases in which the auditing judge, as the trier of fact, is required to hear *410and review conflicting extrinsic evidence in order to resolve an issue of fact, which might be the testator’s intent, or some other question. See cases cited in the opinion of the court, supra, at 403, n.2; see also Gramm Estate, 437 Pa. 381, 263 A. 2d 445 (1970); Zeedick Will, 421 Pa. 44, 218 A. 2d 755 (1966); Abrams Will, 419 Pa. 92, 213 A. 2d 638 (1965). The rule is, of course, a proper recognition by appellate courts of the role of the judge as a fact-finder, including especially the peculiar opportunity which is his to observe witnesses and determine credibility. The same rules applies to findings by a chancellor, Fec v. Mickail, 438 Pa. 439, 265 A. 2d 800 (1970); Cowen v. Krasas, 438 Pa. 171, 264 A. 2d 628 (1970); Wampler v. Shenk, 404 Pa. 395, 172 A. 2d 313 (1961); or a law judge sitting without a jury, Lawner v. Engelbach, 433 Pa. 311, 249 A. 2d 295 (1969); Belmont Laboratories, Inc. v. Heist, 300 Pa. 542, 151 Atl. 15 (1930); 9 Standard Pa. Practice, Ch. 40, §107 (1962). In the case at bar there was no dispute of fact, no issue of credibility; indeed, as noted above, the auditing judge refused to consider extrinsic evidence offered to prove the testator’s intent. Such evidence was unnecessary, in the judge’s view, in light of his determination that the testator’s intent was obvious from an examination of the four corners of the instrument. This is not the sort of “fact finding” which is or should be controlling on appeal; although we should give the auditing judge’s opinion due weight, surely an appellate court possesses an equal capacity for determining the meaning of words and interpreting the language of a will from the undisputed factual circumstances. As the Court, speaking through Mr. Justice O’Bbien, said in Kemp v. Majestic Amusement Co., 427 Pa. 429, 433, 234 A. 2d 846 (1967): “The facts are not in dispute. The decree of the court below is based on inferences and deductions from the facts. Its con*411elusions, being the result of reasoning, are subject to review and correction by this court. Reilly v. Walker Bros., 425 Pa. 1, 229 A. 2d 457 (1967); Philadelphia Transportation Co. v. Philadelphia Suburban Transportation Co., 382 Pa. 365, 115 A. 2d 233 (1955). This court can competently draw the appropriate inferences and conclusions from the evidence, regardless of the action of the court below.”

I would reverse the decree of the court below and award to appellants the full residue of the decedent’s estate.

Mr. Justice Nix and Mr. Justice Manderino join in this dissent.

The will was written for the testator by his mother, because he had a disabled arm. It is undisputed, however, that the signature to the will is his own. A challenge of the testator’s father, appellee herein, to the validity of the will was withdrawn in the lower court.

The excess of insurance over funeral expenses was $861,

The inventoried value of the decedent’s estate was approximately $33,400. Of this sum approximately $20,000 consisted of items of property specifically referred to in the will; approximately $13,300 worth of property was not so referred to, and are the assets here in dispute. Of the unspecified property, the major portion was real estate valued at $10,300. At the time the will was executed, the real estate was owned by the decedent and his mother as joint tenants with right of survivorship. The mother predeceased the testator, vesting full ownership in him.

But see Roget’s International Thesaurus, §50.3 (1950), indicating that “bulk” can mean “the whole of something”.