Burleigh's Estate, In re

• Decision Date: 05 December 1961
• Citation: 175 A.2d 838,405 Pa. 373
• Parties: In re Estate of Clarence BURLEIGH, Deceased. Appeal of Thomas D. BURLEIGH. Appeal of Mildred H. BURLEIGH, guardian of the Estate of Margery Elisabeth Burleigh, a minor.
• Court: Pennsylvania Supreme Court

Page 838

175 A.2d 838

405 Pa. 373

In re Estate of Clarence BURLEIGH, Deceased Appeal of Thomas D. BURLEIGH Appeal of Mildred H. BURLEIGH, guardian of the Estate of Margery Elisabeth Burleigh, a minor.

Supreme Court of Pennsylvania.

Dec. 5, 1961.

Rehearing Denied Dec. 29, 1961.

J. Murray Egan, Donald W. Shaffer, Weller, Wicks & Wallace, Pittsburgh, for appellant.

John E. Evans, Evans, Ivory & Evans, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.

BELL, Chief Justice.

Clarence Burleigh died testate on February 25, 1923, leaving a last will dated November 5, 1919. The question involved: What shares did various heirs take under the Fifth paragraph of Burleigh's will?

Testator, in the Fifth paragraph of his will, gave (a) his son income for life, (b) at his son's death, maintenance and support to his widow for life, (c) maintenance and support during their minority for children of his son living at his death, and (d) after said children reach 21, balance of the net income to them for life.

The Fifth paragraph then relevantly provides:

'And after the death of my said son, my said daughter in law, and of all said children of my son living at the time of my death, then my said trustees shall assign, transfer and convey, all of my estate then remaining and being in their hands, equally to my said brother and sister, or their heirs, ¹ in fee simple, absolutely and unconditionally.'

This was a strange will because the testator after giving certain grandchildren income for life, gave, for reasons known only to himself, the principal, not to their children or issue, but to his brother and sister or their heirs.

Testator at the time of the execution of his will was 66 years old. He had a son, Clarence Burleigh, Jr., who was 40 years of age and was married to Marguerite Brown Burleigh. They had 3 children--Ida Jeanette Burleigh Elterich, who was 15 years of age; Clarence Burleigh, III, who was 10 years of age; and Florence Burleigh Edwards, who was 6 years of age. Testator also had a sister, Minnie B. Ferguson, 48 years of age; and a brother, William T. Ferguson, 57 years of age. Each of the above named relatives survived testator.

Clarence Burleigh, Jr., died July 5, 1936. Testator's brother died on March 23, 1943. Testator's sister died on February 5, 1951. Testator's last surviving grandchild died January 26, 1959. Marguerite Brown Burleigh, the last surviving income beneficiary, died January 30, 1960. Thereafter the trustees filed this, their final account.

At the audit of the account, Philip B. Ferguson, who was a child of decedent's sister, claimed as her heir one-half of the trust corpus. Ferguson contended that testator's gift to his brother and sister gave each of them at testator's death a vested one-half interest in the principal of the trust, and that testator's sister's one-half interest in the trust corpus was devised by her to her husband and by him to claimant. Claimants, (a) Thomas D. Burleigh, a child of testator's brother, ² and (b) Margery E. Burleigh, a daughter of William S. Burleigh, who was a deceased child of testator's brother, contend that testator's words 'or their heirs' provided an alternative substitutionary gift to the heirs of his brother and sister should his brother and sister predecease the last surviving income beneficiary, and that all such heirs should take per capita. The lower Court held, 'that on the death of the testator an equal and therefore one-half remainder interest in the trust established by his will vested in Minnie B. Ferguson, his sister, and in William T. Burleigh, his brother, which interests were not divested on their deaths, but were transmitted by their respective wills.'

The pertinent principles of law are well settled; their application is sometimes difficult.

It is now hornbook law (1) that the testator's intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting or the testator's intent is for any reason uncertain: Dinkey's Estate, 403 Pa. 179, 168 A.2d 337; Pruner's Estate, 400 Pa. 629, 162 A.2d 626; Wanamaker's Estate, 399 Pa. 274, 159 A.2d 201; Hope's Estate, 398 Pa. 470, 159 A.2d 197.

Testator's will is artistically drawn and his intent is clear until the clause in question. The word 'heirs' is a technical word which for centuries has had a technical meaning. A conveyance to A or his heirs--unlike a conveyance to A, or a conveyance to A and his heirs--was construed to mean at common law, that the conveyance to the heirs was substitutionary and in case of A's death before the testator the heirs took as purchasers: Mallory's Case, 5 Co. 112a; 1 Co.Lit. 494; Gittings v. M'Dermott, 2 Milne & Keen 69; Re Crawford's Trust, 2 Drew 234.

While several early Pennsylvania cases held that 'A and his heirs' were synonymous with 'A or his heirs', our later decisions have followed the common law and held that in the latter case the gift to the heirs was substitutionary unless the language of the entire will, in the light of the surrounding circumstances, indicated a different intent; Golden's Estate, 320 Pa. 4, 181 A. 484; Simpson's Estate, 304 Pa. 396, 156 A. 91, 78 A.L.R. 989. Testator did not specifically or clearly say when the gift to his 'brother and sister or their heirs' should vest, and therefore we must consider this language together with the other language of his will and the circumstances surrounding him when he made it. These aid us in ascertaining Burleigh's intent.

In the Fourth paragraph of his will testator gave $10,000 to his brother and $10,000 to his sister. Under this...