Troxell's Estate

KELLER, J. dissents.

Argued December 9, 1926. The question is whom did testatrix intend to designate by the words "such deceased one's heirs and legal representatives." She died in 1899. By her will, made and proved that year, she devised all her real estate in trust for the lives of her son Norman and her granddaughter Ursula, and the life of the survivor, the income to be paid to them in equal shares "and upon the decease of either my said son or my granddaughter, then such deceased one's share of the said rents and income shall be devoted and applied to such deceased one's heirs and legal representatives ...... during the life of the survivor of said Norman and Ursula." Her son and granddaughter were her nearest of kin; when her will was made her son was married and had one child. She also directed that on the decease of both Norman and Ursula the real estate should be sold and the proceeds distributed, "the one half thereof to the children and lineal descendants of my son Norman — the children of any deceased child together to take the share the parent would have taken if living." The balance of her estate she ordered converted into money and divided into two equal parts, giving one half of one of these parts to her son "and to his heirs and legal representatives" and directing that the other half of such part be held in trust, the income to go to her son for life, the principal upon his decease to go "to the children and lineal descendents of said [son]......" The other part was similarly disposed of for the granddaughter's benefit, with the addition that if she died without children or lineal descendants surviving, "the balance of said trust fund then remaining" should pass to the heirs of testatrix as if she had "then died intestate."

Norman, the son, died in 1922 leaving a widow but no lineal descendents. In 1924, a trustee's account was filed. The whole of the income from the real estate was claimed by Ursula; Norman's widow claimed one half on the ground that she came within the designation "heirs and legal representatives" of Norman. An auditor appointed to pass on the point concluded that Norman's widow was entitled to one half the income during Ursula's life. The Orphans' Court sustained exceptions to the auditor's report and awarded the entire income to Ursula. Norman's widow has appealed.

Both sides agree that, considered by itself, the expression his "heirs and legal representatives" does not include Norman's widow as a devisee: Lesiew's Estate, 205 Pa. 119, 122. And appellant agrees that interpretation must prevail "unless," in the words of her brief, "the contrary intent is so plainly apparent that it cannot be misunderstood": Dodge's Appeal, 106 Pa. 216, 220. This contrary intent, she contends, is shown by the use of the expression "to the children and lineal descendants" of the son and granddaughter respectively, in disposing of the proceeds realized by the conversion of the real estate on the death of the survivor, and by similar expression used later in the will to dispose of the principal of the trust of the personal property. The use of these expressions to designate lineal descendants as legatees, appellant argues, indicates that by the earlier expression "heirs and legal representatives" in the trust of real estate, testatrix did not intend to refer to lineals, or heirs in the legal sense as one upon whom the law casts an estate in the event of intestacy, but in some popular sense, and that she intended by that expression to benefit Norman's wife if she survived him and their child, as in fact she did.

As nullifying those inferences, appellee relies on the difference in the expressions as conclusively indicating that the son's widow should not take in any circumstances; that as the trust was of real estate, the words "heirs and legal representatives" (synonymous in a devise or realty: Lesiew's Estate, supra) describe a class of devisees to which the son's widow could not belong, whereas the phrase lineal descendants was also aptly used in disposing of personalty at the termination of that trust when testatrix wished to designate a class of legatees excluding appellant. These technical expressions employed in the will by the scrivener, who was obviously not a layman, are given their full significance in the conclusion reached by the learned court below. To agree with appellant would require us to destroy that significance and to say that the limitations were not intended to be understood in their legal sense; we cannot see that such "contrary intent is so plainly apparent that it cannot be misunderstood."

There is no merit in appellant's argument that the enlargement of the capacity of a surviving spouse to take real or personal estate, or both, left by a deceased spouse, pursuant to the Intestate Act of June 7, 1917, P.L. 429, sec. 2, confers upon the appellant a right which she did not possess on the death of the testatrix in 1899 to take any part of the estate now before us, as heir of her deceased husband: 9 R.C.L. p. 16; 18 C.J. sec. 6, p. 808; Woods' Appeal, 18 Pa. 478, That statute does not change the inquiry, which is, what was the intention of testatrix as stated in her will, speaking as of 1899, the time of her death. By the law then in force, appellant could not become heir to her husband's real estate. Testatrix intended to designate only such takers as could then by existing law become the husband's heir, though of course the particular person or persons who would take could not be known until the death of the husband; all that would be certain was that the taker must be one who might have been his heir under the law as it then stood and not be one who could not then have been his heir; see Heath's Estate,286 Pa. 335, and cases there considered; also Wilson's Estate,65 Cal.App. 680, 225 P. 283. In Page on Wills, 2d. Ed., Vol. 1, p. 1489, it is said: "Whether a gift to `heirs' means those who would take under statutes in force when testator makes his will, when he dies, or when the gift vests, is a question on which there is conflict of authority. It has been held that a lesser degree of contingency is always to be preferred; and that statutes in force when the will is made are intended." Certainly, after the death of testatrix and the probate of her will, the object of her bounty ought not be subject (in the words of the California decision cited) to the "biennially recurring contingency of a change in the statute."

Decree affirmed, costs to be paid by the estate.