Opinion Sur Exceptions
Concurring in Part and Dissenting in Part
Shoyer, J.,The majority would treat what is most likely a typographical error, that is the adding of the letter “s” to the words “brother” and “sister,” in paragraph fifth of the will, as a declaration in favor of three brothers and one sister, while at the same time completely rejecting the word “said” which refers to the one brother, Louis H. Ayres, and the sister, Mary R. Huston, to whom, and to whom only as such, reference was made by name in an earlier part of the will as no other brother, and of course, no other sister, was previously named.
My study of this will from its four corners, with especial attention to paragraph fifth, convinces me of testator’s intention to distribute the second half of his residuary estate in a selective and unequal manner just as surely as he provided for an equal distribution of the first half. The sharp difference in testator’s language in disposing of the two parts of his estate is more than sufficient proof of his changed intent.
In one case he directed that principal go “to all my nephews and nieces in equal shares.” In the other, in*515stead of using that phraseology, he provided that principal be divided “among the children of my said brothers and sisters.”
How could he have expressed his intention as to equality of the first half with more clarity or precision? For emphasis he has even included the adjective “all.” Indeed, one may observe a penchant for use of the word “all,” which appears in every paragraph of the will and codicil except the third and sixth, just as the majority has noted with regard to the repeated use of “said.” The two adjectives are antonyms, not synonyms, however, and in no instance is there any ground for suspecting that testator confused one with the. other. They stand in sharp contrast. Surely testator would again have used “all” if he had intended equality and the word “said” did not slip in by mistake. We may be sure then that testator’s use of “said” was something more than accidental surplus which the majority has chosen to reject from its consideration.
Testator’s will was typewritten and we know from experience that the accidental addition of an “s” to a singular noun is a common typographical error. The error in “sisters” can be explained in no other way as testator never had but one sister. Even the majority agree that it must be dropped for this reason. Construction of the plural “brothers” is less easy. The adjudication rationally suggests that “the reference to ‘brothers and sisters’ of a person necessarily includes the one brother and the one sister of that person when there are no more.” If, however, the continued presence of “brothers” along with “said” appears irreconcilable, it seems more logical to drop the “s” from “brothers” as another typographical error rather than to substitute “all” for “said” as the majority in effect are doing. A skilled surgeon excises only diseased tissue, no *516healthy flesh.* In construing testator’s language a wise judge will reject only that which presents an insurmountable obstacle to a sound construction. Effect should be given to “every word employed by the testator and a construction which renders any of the words nugatory and futile must be rejected”: Vandergrift Estate, 406 Pa. 14, 26. There is no rule which gives similar sanctity to, nor precludes the dropping of, a mere suffix.
Other parts of the will clearly express inequality. Thus with twelve living nephews and nieces to remember, testator has given pecuniary legacies to only three. Along with these gifts he has given two legacies to his sister, ignored completely one of her three children, and remembered a cousin and one nonrelative. Surely this does not spell out the equality favored by the majority of this court.
In Page’s Estate, 227 Pa. 288, 289, Judge Penrose followed the rule that “where a testator uses a different word or phrase he will be presumed to have a different meaning.” Accord: Elliott v. Diamond Coal & Coke Co., 230 Pa. 423, 425; Meily v. Meily, 147 Pa. Superior Ct. 140, 143; Estate of Thomas Fletcher, 103 Pa. Superior Ct. 69, 72. A corollary to this rule would be that where testator has once expressed equality in the clearest possible language as here, no court should impress the same equality on another gift where testator has chosen wholly different but somewhat ambiguous language which, while it may not precisely define his exact intention, certainly does not obscure his desire for a contrary result. We should heed the warning of our Supreme Court that “. . . we must be constantly alert to see that artificial rules of construction should be resorted to only where the intent of a testator as gleaned from his language is obscure, or where there is com*517pelling practical necessity for their application; and when the reasons on which they are founded do not exist they ought not be applied”: Earle Estate, 369 Pa. 52, 60. (Italics supplied.)
For these reasons, as well as those set forth by the learned auditing judge in his adjudication, I would affirm distribution to the heirs in five equal shares. Hence I dissent from that part of the majority’s action and opinion increasing the shares to twelve.
Saylor, J., joins in this concurrence and dissent.“To cure a hangnail one does not amputate the finger, let alone the whole arm” — after Aesop.