Estate of Schwarzbarth

JOHNSON, Judge,

dissenting:

This case involves the enforcement of a testimentary provision requiring decedent’s widow to continue to use decedent’s surname. The majority limits the surname requirement to the community of Harvey’s Lake in which decedent resided at the time of his death and provides an exception for situations where it could inconvenience or embarrass the widow or her current husband. Finding such interpretation to be contrary to the clear intent of the testator, I must respectfully dissent.

The primary consideration in construing and interpreting a will is to give effect to the intent of the testator. Matter of Estate of Blough, 474 Pa. 177, 185, 378 A.2d 276, 280 (1977); In re Estate of Jacobson, 460 Pa. 118, 122, 331 A.2d 447, 446 (1975); Estate of Zerbey, 313 Pa.Super. 297, 302, *201459 A.2d 1237, 1240 (1983). Unless the will is ambiguous, a court should extract such intent from the four corners of the will. Blough, supra; Jacobson, supra. Only where a court cannot ascertain the testator’s intent from the will itself may the court look to matters outside of such document. Estate of Taylor, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978); In re Estate of Soles, 451 Pa. 568, 571-72, 304 A.2d 97, 99 (1973). The majority relies on extrinsic evidence to support its interpretation of the will; I find such unnecessary.

The Schwarzbarth will, paragraph SECOND, which is in dispute, reads as follows:

(a) To pay the net income therefrom periodically, but not less than quarterly, to or for the benefit of my wife, GOLDIE, during her life or for so long as she shall retain the surname of SCHWARZBARTH, whichever event shall first occur.
(b) Upon the occurrence of either of the two events mentioned in Subparagraph (b) [sic] of this Item of my Will, the said Trustee shall distribute all the undistributed principal and income, free of Trust, in three equal shares, with one of the said shares to go to my daughter, LAURA, another of the said shares to my daughter, MAXINE, if they are then living, and the third of the said shares shall be cut up into so many parts as I have grandchildren then living, that is to say, children of my said daughters, LAURA and MAXINE, with each of the said grandchildren to take per capita. In the event, however, that either of my daughters, LAURA or MAXINE, should not survive the occurrence of either of the two events mentioned in Subparagraph “A” of this item, then the share of such deceased daughter as she would have received had she survived, shall be paid to her issue, per stirpes, free of Trust.1

(Emphasis supplied.) In the majority’s view, paragraph (a) is unclear as to whether the testator wished to penalize his *202widow if she remarried or merely wished to require her to use the surname of Schwarzbarth. The majority then examines a preceding will and determines that the provision required merely the continuation of the name. The Orphans’ Court accepted testimony from both the widow and the scrivener concerning testator’s preoccupation with the continuation of his name.2 The majority construes such concern as not requiring exclusive and continuous use.

In reaching its conclusion, the lead opinion looks to the testator’s and his widow’s relationship. As the lower court did, my colleagues infer that the testator must have understood that his widow upon remarriage would encounter difficulty in maintaining the surname. Therefore they theorize that the testator only wished that the name be perpetuated in the community in which it was known, as he did not intend to cause any hardships to his widow.3

In re Estate of Kelly, 473 Pa. 48, 54, 373 A.2d 744, 747 (1977) held that:

[A]n ambiguity in a will must be found without reliance on extrinsic evidence before the extrinsic evidence is admissible. As we said In re Mizener’s Estate, 262 Pa. 62, 66, 105 A. 46, 48 (1918):
“A latent ambiguity can exist [only when] necessary to identify the subject matter or object of a devise and if there is in existence a subject or object that satisfies the terms of the will, and to which they are applicable, there is no occasion for the introduction of parol evidence, and a doubt suggested by extrinsic circumstances cannot be permitted to affect its construction. To do so would, in effect, amount to changing the will of the testator, and writing a new one for him, rather than interpreting the will of his making.”

See also Battles’ Estate, 379 Pa. 140, 143-44, 108 A.2d 688, 690 (1954); contra, In re Estate of Jacobson, 460 Pa. at 123, *203331 A.2d at 449. The majority, after reviewing the extrinsic evidence, determines that the testator’s chosen language is ambiguous and therefore, in my opinion, reforms the clear intent of the decedent.

Declarations allegedly communicated to the scrivener of the will should not be admitted to alter the intent of the testator as gleaned from the four corners of the will. In re Estate of Kelly, supra. In a similar light, extrinsic evidence of the surrounding circumstances existing at the time the will was executed cannot be received as evidence of intent independent of the written form used. In re Estate of Jacobson, supra. Furthermore, “[t]he duty of the court is not to determine what the testator might or should have said in light of subsequent events but, rather, the actual meaning of the words used.” Estate of Blough, 474 Pa. at 185, 378 A.2d at 280; quoted in Estate of Toland, 495 Pa. 482, 486, 434 A.2d 1192, 1194 (1981) and Estate of Zerbey, 313 Pa.Super. 297, 302, 459 A.2d 1237, 1240 (1983).

The chancellor relied on all three sources: the scrivener’s recollection, the relationship of testator and his widow at the time the will was signed, and the subsequent effect of the provision upon the widow. I cannot condone such consideration when the will, in my opinion, is straightforward. The will conditions the payment of the income of the trust upon the widow’s continual use of the surname Schwarzbarth; it does not condition it upon the use in a certain community nor so long as it does not create any inconvenience. Should the widow discontinue the use of the name the income goes to the testator’s daughters. To interpret it otherwise is to write the condition out of the will.

Nor do I believe that the rules of construction, as they pertain to such conditions, require us to give it such an interpretation. The language here in dispute is “for so long as.” Such a phrase creates and denotes a valid determinable life estate which would automatically expire upon appellee’s failure to retain testator’s name. See Higbee Corp. v. Kennedy, 286 Pa.Super. 101, 107, 428 A.2d 592, 594-95 *204(1981); Stolarick v. Stolarick, 241 Pa.Super. 498, 506, 363 A.2d 793, 797 (1976). While such conditions are not favored in law as they terminate estates, where the grantor’s intention to limit the grant is clear, the condition will be enforced. Cooper v. Milikovsky, 382 Pa. 30, 112 A.2d 616, 617 (1955) (per curiam affirmance on basis of trial court’s opinion; opinion not reprinted in official reporter); Higbee Corp., 286 Pa.Super. at 109, 428 A.2d at 596.

The majority has relied on various rules of construction to aid them in determining the testator’s intent. However, one should not resort to such canons of construction unless the will is ambiguous. Estate of Sykes, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978), Estate of Blough, supra. Since, in my opinion, the intent of the testator is clear from the four corners of the will, the only question that must be decided is whether appellee retained the surname of Schwarzbarth.

I find that the record is abundantly clear that appellee used both the surname of Schwarzbarth and Fried, independently of each other, depending upon which community she was concerned with. If she was dealing with the Harvey’s Lake area she was known as Mrs. Schwarzbarth. When she was in Allentown she was known as Mrs. Fried. It is true that many of her credit cards were in the name of Schwarzbarth; but it is equally true that the majority of them were continued from the time she was married to the decedent. Of those later acquired, one was in the testator’s surname, the other in the name of Fried.

The majority notes that appellee’s driver’s license was in the name of Schwarzbarth, but refers to her voting record and bank accounts, which were in the name of Fried, as being “largely official.” Many of these records or documents are justified by their relationship to Mr. Fried’s business. I am unpersuaded. A voter’s registration is non-business related. Many of the various bank accounts held in the name of Fried are not business related. Furthermore, such business was conducted under a non-family corporate name; hence, in my opinion, the use of her husband’s name was not necessary.

*205The decedent had been very proud of his Jewish heritage. The record reflects that he had made sizeable donations to Jewish organizations. Yet, his widow, who has accepted trust payments conditioned upon her continued use of the decedent’s surname, made her pledge to the Jewish Federation of Allentown in the name of Mrs. A. David Fried, rather than in the name of Schwarzbarth.

Appellee’s own testimony summarizes the use of decedent’s name. She stated: “Whenever it is proper and whenever I can, I use the name of Schwarzbarth. When it would have any effect or embarrassment on my husband, I use the name of Fried.” (N.T. p. 177) “Whenever I can use the name of Schwarzbarth without embarrassing my husband, I use it.” (Id.)4 Is such use consistent with Mr. Schwarzbarth’s clearly expressed intent? I think not.5

If we place ourselves in the testator’s arm chair and assume his point of view, see In re Estate of Soles, 451 Pa. 568, 574, 304 A.2d 97, 100 (1973) (plurality opinion), we are appalled by what we now see before us. He was in failing health, married to a woman thirty years his junior, he was without male heirs, but intent on continuing his name. He did not want to unduly inhibit his wife from remarrying, but he did want his name to be remembered. To promote the continuation of his name he required his widow to continue its use, under the threat of forfeiture of trust payments. A few years after his death, his widow remarries and instead of honoring his name, only uses it when it is convenient for her to do so. Decedent provided for such possibility by providing for the forfeiture provision. However, the courts have refused to honor his wish and, instead, his name continues on only in the legal journals of this Commonwealth.

*206The majority expresses its view that forfeiture would be unjust in light of appellee’s faithfulness to the decedent for twenty years. I find the majority’s resolution of this appeal to be unjust to the testator; it is his intent we are to effect.

I would reverse the order of the Orphans’ Court. Hence, this dissent.

. The above language of subparagraph (b) may be found in a codicil dated June 25, 1965.

. He had no male heirs to continue the name.

. The majority does not address the possibility that the widow would remarry and remain in the same community nor the fact that the couple had spent considerable time in New York State.

. The record in no way suggests how some of the uses could embarrass Mr. Fried.

. I do not reach the question of whether the surname had to be used exclusively without exception, as the facts of this case indicate more than an occasional variance from the requirement.