Lennig's Estate

Gest, J.,

The narrow question of construction arising in this case is very susceptible of argument and was ably argued. The testator, who wrote his own will, with the natural result, has designated as his beneficiaries “my legal descendants then living the Sons and daughters of my daughter Williamina Thudicum and Joyeuse Arnoys, my sons Nicholas and John B. Lennig and none others,” and the enigma, the answer to which was buried with the testator thirty-eight years ago, is whether the word “descendants” enlarges the words “sons and daughters,” or whether the latter phráse restricts the meaning of the former. Tne “descendants” of a testator mean, in plain English, his issue ad infinitum; “sons and daughters” have a meaning equally plain, so that the clause is inconsistent and ambiguous. Our task is to harmonize these inconsistencies and extract from the will as a whole the real intention of the testator. The usual canon of construction is that a will must be construed from its four corners, and if the will is four-square, the problem is generally rather simple, but if the will is an irregular polygon, the difficulty is greater.

As it has been often said, the word “children” will not include “grandchildren” unless this appears clearly to have been the meaning of the testator or unless the will would be otherwise inoperative, Dickinson v. Lee, 4 Watts, 82; Hallowell v. Phipps, 2 Wharton, 376; Castner’s Appeal, 88 Pa. 478, which are referred to in Williamson’s Estate, 3 D. & C. 1, affirmed 82 Pa. Superior Ct. 444, where a similar difficulty arose as between grandchildren and great-grandchildren, and we can only solve the problem by consideration of the will as a whole, which the Auditing Judge has carefully analyzed in the light of testator’s circumstances and knowledge of his family. We think that the expression “and none others” is not used by the testator to qualify the term “sons and daughters,” but to make it clear that the descendants of his other daughter, Ottilia, were not included in the gift, as it appears from the will itself, and it is indeed conceded, that Ottilia had displeased her father, the testator, by her marriage, so that he intended to deprive her and her children from all participation in his estate beyond the comparatively trifling provision he expressly made for her children.

We need not elaborate the argument of the Auditing Judge, except to say that we regard as very significant the testator’s direction that the participants in his residuary estate should claim and prove their interest within one year after three months’ advertisement. As the Auditing Judge points out, this could not have been intended merely for the ascertainment of grandchildren, though we need not lay any special stress on the Biblical and poetical use of the expression “sons and daughters” as equivalent to descendants ad infinitum. It was indeed suggested in argument by counsel for the children of John B. Lennig that the gift to descendants thus interpreted would include not merely the living grandchildren but also their living issue, all being legal descendants then living of the testator, and who appear to be fourteen in number altogether, but we think this would be a very strained construction. To be sure, it has been held in some cases that in a gift to persons nommatim, or as a class and their issue, the issue may take concurrently, or, as it is sometimes expressed, in competition with their living parents. The presumption is against such an unlikely meaning, if there is even a faint glimpse of a different intention, and, without discussing the numerous cases in other jurisdictions, we refer merely to Arnold’s Estate, 22 Dist. R. 1, and Shoch’s Estate, 30 Dist. R. 367 ; 271 Pa. 165. We are of opinion that the Auditing Judge correctly held that the parties entitled were the living children of the testator’s four children named and the two children of Alexander Arnois, the deceased son of Joyeuse. Joyce’s Estate, 30 Dist. R. 840, 273 Pa. 404, is very much in point.

But we are of opinion that the Auditing Judge was in error in awarding distribution per stirpes among all the participants. The gift is to “my legal descendants then living the sons and daughters of my daughter Williamina Thudicum and Joyeuse Amoys, my sons Nicholas and John B. Lennig and none others.” The meaning of the latter phrase has been already discussed. The gift, however, is to a class, all of whom stood in the same plane, being all grandchildren of the testator. The gift is to them, share and share alike, and, in our opinion, the case is governed by Brundage’s Estate, 36 Pa. Superior Ct. 211, rather than by Sipe’s Estate, 30 Pa. Superior Ct. 145, which was relied upon by the Auditing Judge. In the latter case, the gift was “to my brother Daniel, to the children of Elizabeth my sister, and to the children of my sister Louisa, and to the children of Michael (another brother) share and share alike,” thus indicating an intention to define several different classes of beneficiaries. Daniel survived and had no children, Elizabeth had seven children, Louisa had five and Michael had two, and the distribution was made per stirpes. In Brundage’s Estate, however, the gift was “to my brothers’ and sisters’ children in equal proportions share and share alike,” and the court held that the estate should be divided equally among all the children of his brothers and sisters, who were described as a single class, all of them being the same relationship to the testator. When, however, we come to consider the two children of Alexander Amois, who, if he were living, would be entitled to one share, we are of opinion that they represented the interest of their father and should divide it between them in analogy to the statute of distribution. While all the numerous cases on the subject differ to some extent in their phraseology, we think this result agrees with the views of the Supreme Court in Minter’s Appeal, 40 Pa. 111; Hoch’s Estate, 154 Pa. 417, and Wootten’s Estate, 253 Pa. 136. See, also, Baizley’s Estate, 7 D. & C. 1.

This construction of the will, we think, gives due weight to all of its phrases. The sons and daughters of the testator’s four children named, being all his grandchildren now living, take per capita, share and share alike, which was the testator’s primary intention, while the legal descendants now living of the deceased grandson, Alexander, take his share per stirpes, reaching a result which is in harmony with the phraseology of the will and in analogy with the intestate law. The Auditing Judge authorizes us to say that he concurs in this modification of his adjudication.

The distribution of the residuary estate should, therefore, be awarded one-fifth to each of Maude L. Hawkes, Elise J. de B. Macauley, Louie L. Rowland and Charles L. Thudieum and one-tenth to Mary Eleanor Amoys (or Amois) and one-tenth to Charles L. Arnois. To this extent, the exceptions are sustained and all others are dismissed.

Counsel will prepare and submit to the Auditing Judge for his approval a schedule of distribution in accordance with this opinion.