Kelly's Estate, In re

• Decision Date: 03 June 1977
• Citation: 473 Pa. 48,373 A.2d 744
• Parties: In re ESTATE of Daniel A. KELLY, Deceased. Appeal of Imelda KELLY.
• Court: Pennsylvania Supreme Court

Page 744

373 A.2d 744

473 Pa. 48

In re ESTATE of Daniel A. KELLY, Deceased Appeal of Imelda KELLY.

Supreme Court of Pennsylvania.

Argued April 22, 1977.

Decided June 3, 1977.

[473 Pa. 50] Louis J. Gagliardi, Philadelphia, for appellant.

J. Brooke Aker, Norristown, for appellee.

Raymond M. Seidel, Norristown, for Estate of Daniel A. Kelly.

Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

MANDERINO, Justice.

Daniel A. Kelly died June 4, 1974 leaving a duly executed will dated July 21, 1969. The will was admitted to probate in Montgomery County, Pennsylvania, on June 11, 1974.

The decedent was survived by his wife, Imelda Kelly, and several first cousins, one of whom is Mary Hay, the appellee.

In the second paragraph of the decedent's will various pecuniary bequests were made; these gifts are not at issue. The third and fourth paragraphs of the will provide:

'THIRD: I give, devise and bequeath unto my beloved wife, Imalda (sic), that share of my estate to which she would be entitled under the Intestate Laws of the Commonwealth of Pennsylvania.

'FOURTH: All the rest, residue and remainder of my estate of whatsoever kind and wheresoever situate, real, personal and mixed, I give, devise and bequeath unto Mary Hays if she is living at the time of my death, or if deceased, then to her children or the issue of any deceased children, per stirpes.'

It is not contested that Mary Hays, mentioned in the fourth paragraph of the will, and the decedent's first cousin, Mary Hay, are the same person.

The executor of the estate undertook the sale of certain real property located in Bryn Mawr, Pennsylvania which the decedent owned at his death. Mary Hay, the residuary devisee-legatee assented to the proposed sale. Imelda Kelly, contending the plain meaning of her husband's will entitled her to his entire estate, opposed the sale. A Reply and New Matter filed by Imelda Kelly asserting her right to the entire estate put in issue the respective rights of Imelda Kelly and Mary Hay under the provisions of the will as set forth above.

This matter arises upon Imelda Kelly's appeal from the decree of the Court of Common Pleas of Montgomery County, Pennsylvania, approving the executor's petition to sell real estate.

Section 2102 of the Probate, Estates & Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, § 2 (20 Pa.C.S.A. § 2102) which is applicable since testator died in 1974, provides for the intestate share of a surviving spouse and was incorporated by reference into the testator's will through the third paragraph. It provides in part:

'The surviving spouse shall be entitled to the following share or shares: . . . The first $20,000 in value and one-half of the balance of the estate, if the decedent is survived by no issue. . . . All of the estate if the decedent is survived by no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle or aunt.' (Emphasis added.)

Neither at the time of the signing of the will, nor at testator's death, were any of those persons designated in Section 2102 to share the estate with the surviving spouse on an intestate, alive. Mary Hay, the residuary distributee, is a first cousin of the decedent. First cousins do not affect the widow's share.

The trial court found the third and fourth paragraphs of the will as set forth above ambiguous, heard parol evidence to resolve the ambiguities, and held that Mary Hay, a first Cousin, would possess the rights of a surviving Aunt of the testator.

Upon finding ambiguities the trial court allowed the scrivener of the will, over objection, to testify that in 1964, some five years prior to the execution of the will in issue, at a conference held to gather information for an earlier will, Daniel A. Kelly told him that Mary Hay was his aunt.

We reverse and find that the will as written is unambiguous. The intent of the testator is clearly stated on the face of the will and it was error to admit and consider parol testimony to impute an intent to the testator that Mary Hay, a first cousin, was to receive the same share a surviving aunt would take.

The trial court found the will ambiguous in two respects. First, the appellant's construction of the will which would allow her to take all and leave nothing for the residuary taker would make the residuary clause 'pointless' and 'impossible of the application.' Second, the failure of the decedent to identify, in the will, the relationship which Mary Hay bore to him constituted an ambiguity. We disagree with both conclusions.

Although the trial court called the residuary clause 'pointless' and 'impossible of application,' the trial court's opinion recognized that the residuary clause could have served a purpose if there had been a change in the intestate laws, if the testator's wife, Imelda, had predeceased him, or if there had been a change in family relationships. A divorce, for instance, would have altered the family relationship. Because of the very reasons pointed out by the trial court in its opinion, we are unable to agree with its conclusion that the residuary clause was 'pointless' and 'impossible of application.'

Moreover, as we said in Peterson's Estate, 242 Pa. 330, 340, 89 A. 126, 129 (1913):

'The fact that there is a residuary clause can in no wise limit or detract from what has been previously given in a will, nor can such residuary clause have the effect of putting a construction on a previous clause of the will in order to create a residue.'

The trial court erred in allowing the existence of a residuary clause, a possible safety valve, to limit or detract from what had been previously given in the third paragraph of the will.

The trial court also concluded that the failure of the decedent to identify his relationship to Mary Hay constituted an ambiguity. According to the trial court, there was an ambiguity because it was necessary to resort to extrinsic evidence in order to determine whether any person mentioned in Section 2102 survived the testator.

We first note that it was undisputed that, except for the testator's wife, Imelda, no other intestate heirs...