Laughlin Estate

Mr. Justice DREW filed a dissenting opinion in which Mr. Chief Justice MAXEY concurred.

Argued November 29, 1945. These appeals concern the construction of a will. The question is whether testatrix has, by charging debts and advancements against the distributive share of one of her three children, invoked the doctrine of hotchpot. Do the words of the will disclose an intent for an equal distribution to all three children? Are the sums so charged against the child's share first to be added to the actual estate, the total divided equally among all three children, and the debts and advancements so charged then to be deducted from the share of the child so charged? Or, do the words of the will express an intent to divide the estate unequally among the three children?

The words of the second item of the will, consisting of the residuary clause, which we are required to construe, read as follows:

"SECOND. All the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situate, I give, devise and bequeath as follows:

"To my Trustee, hereinafter named, one third thereof IN TRUST, however, for the uses and purposes as hereinafter set forth for the benefit of my son, GEORGE LAUGHLIN and his family; PROVIDED, however, that inasmuch as my son, GEORGE LAUGHLIN, the beneficiary of this Trust Estate, has received from me during my lifetime sums of money at various times, in excess of amounts given to my other children, I direct that his portion of my estate shall be chargeable as follows:

"First, with an amount equal to the carrying charges, namely, taxes and water rent of my property known as 650 E. Westmoreland Street in the City of Philadelphia, for the term that he has occupied it, approximately eighteen years preceding the date of this my will.

"Second, with an additional amount equal to the taxes and water rent of my said property at 650 E. Westmoreland Street from the date of this my will, until my decease.

"Third, with any and all sums of money which I may advance to him or to his wife from the date of July 15th, 1937, until my decease, an account of which shall be kept by me.

"And the Trust Estate, as so diminished, I direct my Trustee to administer as follows: To invest, re-invest and keep invested the principal thereof, which shall include my property at 650 E. Westmoreland Street, at a valuation as regards the distribution of my estate, of Four thousand one hundred fifty dollars, and to apply the income therefrom to the support and maintenance of my son, GEORGE LAUGHLIN, and his dependents, in weekly installments of Twenty-five dollars.

"And I do further order and direct that my said Trustee may expend, if in her discretion she may deem it necessary, all the principal and income for the said GEORGE LAUGHLIN, and his dependents; and my said Trustee shall be unrestricted in using her discretion in the expenditure of the principal and weekly payment, and her action in such regard, I direct, shall not be questioned in any way.

"It is my desire, and I so direct, that my son, GEORGE LAUGHLIN, and his wife, MARY E. LAUGHLIN, shall have the privilege of occupying my property at 650 E. Westmoreland Street, which is a part of this Trust, for and during all their natural lives; PROVIDED, however, that should it be deemed best for the interest of this Trust, my said Trustee shall have the authority to sell the said property, applying the proceeds of such sale according to the terms of this Trust, without any liability on the part of the purchaser to see to the application of the purchase money.

"And the remainder of this Trust fund upon the death of my son, GEORGE LAUGHLIN, shall be distributed among his descendants according to the intestate laws of the Commonwealth of Pennsylvania.

"And all the remainder of my said residuary estate, I direct shall be divided equally between my son, HENRY LAUGHLIN and my daughter, STELLA M. SHANNON, their heirs and assigns, absolutely and forever."

The initial inquiry is whether the amounts chargeable against George's share are to be regarded as advancements; if so, do the words of the will express an intent not to bring such advancements into hotchpot?

An advancement in its strict technical sense relates exclusively to cases of intestacy. It is an irrevocable gift by a parent to a child in anticipation of such child's future share of the parent's estate: Yundt's Appeal, 13 Pa. 574;Miller's Appeal, 31 Pa. 337; Intestate Act of June 7, 1917, P. L. 429, section 22, 20 PS section 135. See 1 R. C. L. p. 653 et seq.; 69 C. J. section 2233, p. 1031 et seq.

In case of testacy where the will does not refer to advancements it is considered that the will extinguishes or merges all prior advancements. The law presumes that by making such a will testator disposed of his estate as he desired and with due consideration for the rights of those to whom advancements had been made. See 1 R. C. L. p. 676 et seq.; 69 C. J. section 2233, p. 1031.

The term advancement, however, is also used in a popular ornon-technical sense, where the will directs that advancements to beneficiaries shall be deducted from their shares. Testator may refer to prior advancements in such a way as to require that they be taken into consideration in the distribution of his estate. Where it is the testator's intention, as shown by the will, to require such charge, deduction or accounting, or otherwise to require the consideration of advancements, such intention will be given effect: Wagner's Appeal, 38 Pa. 122;Mengel's Appeal, 116 Pa. 292, 9 A. 439; Eichelberger'sEstate, 135 Pa. 160, 19 A. 1014; Vilsack's Estate, 226 Pa. 379,75 A. 604; O'Connor v. Flick, 271 Pa. 249, 114 A. 636; Gowen'sEstate, 285 Pa. 219, 131 A. 727; see also Montgomery's Trusteev. Brown, 134 Ky. 592, 600.

The method of calculation of distributive shares is the same, whether the advancements are in an intestate's estate and are regarded in their strict technical sense, or under the terms of a will where they are treated in their popular or non-technical sense. Advancements are to be treated as if repayment had been made to the estate, the total divided among the heirs or beneficiaries, and the advancements deducted from the shares of those advanced. The whole is placed in hotchpot, the advancements added and the total divided: Wagner's Appeal, supra; McConomy's Estate, 170 Pa. 140, 32 A. 608; Smith Estate,350 Pa. 418, 420, 39 A.2d 513; Doverspike's Estate, 61 Pa. Super. 318.

The doctrine of hotchpot is of ancient origin. It is a part of the common law. It corresponds in a measure withcollation in the Civil and Scots law. It constitutes a blending or throwing into a common lot or stock of property for equality of division.

Blackstone (Vol. I, p. *190) states the origin and operation of the doctrine of hotchpot: ". . . if one of the daughters has had an estate given with her in frankmarriage by her ancestor, (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage,) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending. This mode of division was known in the law of the Lombards . . . With us it is denominated bringing those lands into hotchpot which term I shall explain in the very words of Littleton: 'it seemeth that this word hotchpot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.' By this housewifely metaphor our ancestors meant to inform us that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters."

See also Blackstone, supra, pp. *516, 517. It was the subject of statutory enactment in England as early as the reign of Charles II (22 23 Car. 11, 1682-1683). The doctrine rests on the presumed desire of an ancestor to equalize the estate among his heirs, not only as to the property left at the time of his death, but as to all property that came from him, so that one child shall not be preferred to another child in the final settlement of his estate. It has for its object the furtherance of that maxim of equity which declares that equality is equity. See Miller's Appeal, supra; Dutch's Appeal, 57 Pa. 461. See also: 1 R. C. L. section 3, p. 655 and 18 C. J. p. 912. See also: 26 C.J.S., Descent and Distribution, section 91.

When, however, the will manifests the intention that advances to beneficiaries shall be accounted for, such advances should be treated as advancements are treated in a case of intestacy:McConomy's Estate, supra; Doverspike's Estate, supra. See also: 69 C. J. section 2233, p. 1033.

These principles are stated in Page on Wills (Lifetime edition), Vol. 4, section 1557, p. 442: "In deducting advancements, the child must not be required to pay the entire value of the advancement over to the other heirs, since he would have received a share of such property in case of intestacy; and the same principle applies to allowances for advancements under a will, unless testator clearly shows an intention to deprive such devisee of such share in the value. A proper method is to value the amount of the advancements, and the property given by the will, and add them together, and divide this by the number of devisees between whom such advancements are to be taken into account. The amount thus obtained is the amount which each devisee would have received if there had been no advancements, and this amount less the advancements to any devisee is the amount to which this devisee is entitled. A direction in a codicil that $900 be deducted from the share of A, and the balance paid to A's wife, is not a gift to the six other beneficiaries of $900, but only six-sevenths of nine hundred dollars, since A's share is charged with an advancement in favor of all the beneficiaries including A."

Where, however, testator expresses an intent forinequality, the presumption of equality falls: Davis's Estate,346 Pa. 247, 29 A.2d 700; Friday's Estate, 150 Pa. Super. 352, 28 A.2d 332. But the expression of an intent of inequality, to overcome the strong presumption of intent of equality, requires plain and unequivocal language to establish it. Conner's Estate (No. 2), 318 Pa. 150, 178 A. 15; Hirsh'sTrust Estate, 334 Pa. 172, 5 A.2d 160; Lochrie's Estate,340 Pa. 145, 16 A.2d 133; Hogue's Estate, 135 Pa. Super. 543, 6 A.2d 108.

We are, therefore, required to examine the words of the will to ascertain whether they indicate an intent for anequal distribution of testatrix's residuary estate, charging advancements, in which event the doctrine of hotchpot must be applied, or whether, in plain and unequivocal language testatrix has expressed an intent for unequal distribution among her children.

At the outset it is to be remembered there is a strongpresumption that in distributing an estate among children testator intends equality: Hirsh's Trust Estate, supra; Hogue'sEstate, supra.

Testatrix has clearly expressed her intent for an equal distribution among her three children. Her expressed reason for charging George's share with the named advancements was ". . . inasmuch as my son, George . . . has received from me during my lifetime sums of money at various times, in excess of amounts given to my other children. . . ." The will does not disclose what sums of money had been paid to George (in addition to the stipulated advancements) or to the other children. Manifestly this language reveals testatrix's scheme of equalizing the shares of all the children. It demonstrates a clear intent for equal division. Furthermore she disposes of her entire residuary estate. She gives "one third thereof" in trust for George and directs the remainder to be "divided equally" between her other two children. This is an equal division, one third to each of her three children. Testatrix specifies the advancements which are to be charged against George's share. It is true that she does not specifically direct that the amounts of the advancements be first added to her residuary estate before division. But such direction is not essential to comply with her plain intent for equal distribution. The law does this for her. We do not entertain the slightest doubt as to testatrix's presumed and expressed intent as to equality, for the reasons and under the cases above cited. Any intent of inequality must be established by plain and unequivocal language, which is not found in this will. If the amounts of the advancements are first added to the estate before division, as they should have been, then testatrix's language in charging George's share, and which share "as so diminished", is to constitute the trust, is in strict accord with the hotchpot doctrine. She directs no more than what the law already provides. The words of the will clearly express an intent for an equal distribution among her children. An unequal distribution is unwarranted by the language of the will. The doctrine of hotchpot should have been applied.

The decree of the Superior Court is reversed and the record remitted with the direction that distribution be made in accordance with the adjudication and schedule of distribution. Costs to be paid from the estate.