Horwitz v. Norris

The opinion of the court was delivered, by

Agnew, J.

— It is a sound rule in the interpretation of wills, that the main intent of the testator should govern, and if possible all the parts of the will be made to harmonize with it. But the first guide for the correct reading of a will is the language used by the testator himself, and we are not at liberty to reject any words he has used, if they can take effect without violating the rules of law. It is only when clauses found in the will are wholly irreconcilable any one can be rejected: Hamm v. Meisenhelter, 9 Watts 351; Sorver v. Berndt, 10 Barr 213 ; Haldeman v. Haldeman, 4 Wright 34. While equality in the dispositions of property by parents among their children is to be favored, and doubtful words should be solved as far as possible to attain it, we cannot set aside the inequalities which their wills clearly create. Hence, when Joseph Parker Norris provided that if his son Samuel should die without leaving a child or grandchild, his share of Fair Hill should vest in the surviving sons named in his will, so that the survivors only should take equal shares, we cannot correct the will by rejecting the words of survivorship, in order to give an equal share to the children of one or more of the sons *282named who might die before Samuel. The right of survivorship is plainly conferred not only in this particular clause, twice expressed, but is to be found in all the clauses of the item relating to the five sons named, in language precisely similar, twice expressed, and denoting the same exact thought in each instance. That the children of a predeceased one of the nominated sons are excluded by these terms, clearly and conclusively confining the share to the survivors, cannot be doubted, and is not contradicted by any part of the will. And that this inequality was intentional, and not a mere blunder of the scrivener, derives additional proof from the provision made by the testator for his daughters. He gave to any one of his six daughters named who might die without issue, power to devise her share of “ Sepviva” to and among all or any or either of his surviving daughters; and if she left no will he directed her share to pass and vest in his surviving daughters and their children. The inequality as to Sepviva is even more glaring than as to Fair Hill.

The same rules of interpretation must be applied to the devise to the trustees of his son Joseph. If the language really confers a share of Samuel’s one-fifth on the children of Joseph, we cannot gainsay it, even though it result in an advantage to them not possessed by some of their cousins. Equality can no more override the testator’s intent in this case than in the former. That Joseph was placed upon a footing different from that of his five brothers is evident. Before considering the particular devise the subject of this controversy, and as bearing on it, it will be useful to notice some of these differences. The testator devoted to the five brothers one item of his will, first creating a single trust for them all, and then by separate but exactly similar clauses, providing severally for each. The next item he devotes to Joseph, making the executors of the will (different persons) the trustees for Joseph and his children. Item is an usual word in a will to introduce new distinct matter: Evans & Wife v. Knorr, 4 Rawle 71. It is supposed that this separation in the will of Joseph from his brothers was solely to provide a more strict trust to protect Joseph’s estate from his creditors, and not to place him on a different footing as to the estate. This might have been one purpose, but was not the only one. As to creditors, the testator appears to have thought he had effectually protected the shares of the brothers also, for he made for them an ample provision, as he supposed, against their creditors. An additional purpose of the trust for Joseph obviously was to protect him against himself. But this is not the only difference. The power of appointment of Joseph was to be among all his children; that of his brothers could be to any or all. If any of the brothers died without issue, his share passed to the survivors and the trustees of Joseph; but no provision was made for Jo*283sept’s' share in the case of his death without issue. The trust for the brothers ceased at their death with issue, but dying without issue it continued in the common trustees for the survivors, to whom the share passed by the will. The trust for Joseph did not cease at his death with issue, but continued actively in the trustees until all his children should arrive at age. That for these variations of design the testator had his own reasons is corroborated by the provisions for his daughters, to whom he devised Sepviva. For six of them he made similar trusts, yet differing in some aspects from the trusts for his sons, and for the seventh (Mrs. Emlen) a trust entirely different as in the case of Joseph, and yet not following his in the same precise track. In her case the trust ceased actively at her death, while her power of appointment was not confined to children, but extended to the person or persons she should select. Another difference between Joseph and his brothers was, that they participated in the residue of the estate, while he took none of it. The reason given by the testator was the advancements he had made for Joseph. But if the testator intended as to Fair Hill that Joseph’s trustees should always share in the portions of the brothers dying without issue, we cannot gainsay that he intended this in compensation for excluding Joseph from the residue. These differences in provision among his children and variations of purpose admonish us, therefore, not to reject the language of any expressed intent, because it does not conform to our own views of what he should have done. We must, therefore, follow his expressed intent, though we may not be able to divine the inward reason.

Thus we are now brought to consider the provision made for-Samuel’s one-fifth on his dying without issue. The testator directed that “then that one of the said five sixth parts of the lands, &e., called Fair Hill shall go to and be equally divided among my said other sons, namely, Charles, Isaac, George and Henry, or such of them as shall be then living, and the trustees hereinafter mentioned of my son Joseph Parker Norris, Jr., in equal parts.” Here then is a distribution clearly expressed — the estate to pass and vest in the living brothers and in the trustees of Joseph. These trustees are by the will the three “ executors thereinafter named and the survivors and survivor of them and the heirs of the survivor.” The testator did not content himself with the single expression foregoing, of his intention as to distribution among the surviving brothers and the trustees of Joseph; or with a single separation of the surviving brothers from these trustees as a party unalterably designated to take an equal share; but he proceeded to add — “ so that the then survivors of my four sons, Charles, Isaac, George and Henry shall each take one equal share, and the trustees of my said son Joseph shall take the other equal share thereof.” It is not possible for language more dis*284tinctly to set apart by themselves the recipients of Samuel’s fifth; the surviving brothers on the one hand, and the trustees of Joseph on the other. Nor is it possible for language more clearly to take the trustees out of the class to which survivorship attaches. The testator says so in almost so many words. With the idea of survivorship directly in view, and the thought pressing itself out into words, he says survivorship shall attach to the four brothers named, while the other share shall vest in a single body made permanent by descent to the heirs of the survivor; to wit, the trustees representing a single ownership. The very character of the body and the separation of their share, therefore, forbid the idea that it is subject to survivorship as are the shares of the brothers. Rut if the testator meant that this share should be contingent on the death of Joseph, it is singular he did not place Joseph in the same category with his brothers. In answer to this it is said that the form of expression — “trustees of Joseph” — is a mere periphrasis for Joseph himself, adopted to preserve his interest from his creditors, who might have seized it if devised directly to himself. The best- reply to this is that found in the will itself, which continuing after the last quotation, proceeds to say: “ Each of which said equal shares shall pass to and vest in the trustees herein appointed, subject to the restrictions and limitations, and for the uses herein declared, in like manner as if the same had been so devised in the first instance; that is to say, the trustees for my said sons Charles, Samuel, Isaac, George and Henry, to take in trust for the use of my said sons Charles, Isaac, George and Henry, in equal parts for the uses hereinbefore mentioned, and the trustees for my said son Joseph to take in trust for the like uses that are hereinafter mentioned.”

Thus the testator carefully provided that the shares accruing to the surviving brothers, as well as that for Joseph, should vest, not in themselves, but.in their respective trustees, for the like uses as the original shares. Therefore, had the share of Joseph been given to him in the same direct language as those given to his brothers, it would have been equally protected from creditors with the original share devised to him; for, by the express provision following immediately the devise of the accrued share from Samuel, it was made to vest in his trustees, subject to the same restrictions and limitations, and to the same uses expressed in relation to the original share. The testator had, therefore, no such reason as has been attributed to him, for separating the devise for Joseph from that to his brothers, but must have had other reasons beyond the person of Joseph merely, and extending to his family. These reasons can be discovered, partially at least, by noticing two facts: the first, that he did not subject Joseph’s share to the same rule applied to his brothers dying without issue; the second, that the trust for Joseph was not to cease at his death *285with issue, as in the case of his brothers, but was to continue actively for the benefit of all his children, until the youngest should arrive at age. It was the evident purpose, therefore, of the testator, in thus separating the devise of this one share from the others to the surviving brothers, to vest this share in the trustees of Joseph for the entire purpose of the trust; which was expressly created for Joseph’s children after his death, as well as for himself while alive. This is not a matter of inference; but is clearly stated by the testator himself when he says, that the trustees of Joseph shall take this share for the like uses that are hereinafter mentioned. These uses cover the whole trust, which by its express terms includes a trust for the children until the youngest attain majority. This is an answer also, and the best that can be given, because it comes from the mouth of the testator, to the somewhat hypercritical statement; that the trustees of Joseph living are not the trustees of Joseph dead. Certainly they are not; but they are trustees of the estate committed to their charge for Joseph alive, and for the children of Joseph dead; and we must not suppose the testator meant to indulge in the same curious vein of thought as to Joseph alive and dead, when we perceive that he created a trust expressly for his children after his death, and distinctly directed this share to vest in the trustees for the same uses, as though it had come to them originally. It is in vain to dispute an intention so unambiguous, and so clearly defined, not only by the separation of this share from all the others, hut by vesting it in trustees in terms coextensive with the whole trust committed to their charge. We cannot substitute our own notions of right or fitness for the clearly expressed will of the testator. For the same reason the argument cannot prevail, which treats the shares of Samuel’s part as vesting in the trustees of his surviving brothers, for the use of the children of any one of the four who might have died before Samuel. It cuts out of the will and leaves out of view the very clause which precedes and qualifies it, by vesting in each of “ the then survivors of my four sons Charles, Isaac, George and Henry” “ one equal share.” By the express terms of the succeeding clause, it is “ each of which said equal shares” which “shall pass to and vest in the trustees herein appointed.” The argument makes the use repugnant to the preceding distribution, by giving to the children of a deceased son that which had been specifically vested in the survivors only, by two distinct declarations of the same intent. This would he simply to strike out of the will what is in it, and to put there what is not. Nor should we be carried away by a dramatic array of figures. The will of Joseph Parker Norris, made in 1838, is not now to be interpreted by the changes produced by the accumulated wealth of thirty years of rapid progress poured into the lap of a *286great city; or by the strides that city has taken toward Fair Hill, almost embosoming it within her built-up limits. If,- by the accidents of life, and the alternations of events unforeseen by Mr. Norris, these changes should bring to the children of Joseph Parker Norris, the son, by this interpretation of his father’s will, property worth a million of dollars or more, it furnishes no argument against the plain meaning of language used thirty years ago, by one then unconscious of these great changes. We are not now to assume for him the character of a seer; or, to suppose he must have indulged in the prophetic spirit now sought to be applied to the interpretation of his will. The meaning it then had is the meaning it now has. If, therefore, the life of Joseph Parker Norris was so prolonged that his children had all grown to majority before his death, rendering the trust for them of the original share no longer necessary to survive, their right to the estate since fallen in from Samuel under this interpretation of the will does not therefore lapse. For this purpose, and to pass the title, the trust will still exist, though but for the instant necessary to carry it over to them. This is not inconsistent with Horwitz v. Norris, 13 Wright 213. That case merely decided that Joseph’s appointment of his original share fell without the power contained in his father’s will, and that that share vested in his children under the terms of his father’s devise. It was in reference to this original share Justice Strong remarked, that the estate of the children was legal, all then being of age. But as to the shares of Samuel since accruing, the trust may be considered to still exist as a scintilla juris to pass the estate; or, if necessary, the estate may be held to pass directly to themselves as now standing in the room of the trustees, whose active duties have ceased. In whatever way the devise may be supposed to operate, it is very certain that the will of the testator will not be permitted to fail by the transitory character of the trust.

In conclusion, our opinion is, that Samuel’s share on his dying without issue vested in his surviving brothers Charles, Isaac, Greorge and Henry on the one hand, and in the trust created for Joseph and his children on the other; and that this intention on the part of the testator is so clearly expressed, we are not at liberty to reject the language creating survivorship among the brothers on the one side, or that which on the other side vests a share in the trustees of Joseph to the whole extent of their trust, and therefore includes his children and himself.

It follows from these views that the pro formd decree made at Nisi Prius must be reversed, and a decree entered for the complainants in conformity with the interpretation given by us to the will of Joseph Parker Norris. Let a decree be drawn up accordingly.