Laughlin Estate

• Decision Date: 16 April 1945
• Citation: 42 A.2d 173,157 Pa.Super. 155
• Parties: Laughlin Estate
• Court: Pennsylvania Superior Court

42 A.2d 173

157 Pa.Super. 155

Laughlin Estate

Superior Court of Pennsylvania

April 16, 1945

Argued March 13, 1945.

Appeals, Nos. 33 and 34, Oct. T., 1945, from decree of O. C Phila. Co., 1942, No. 1051, in Estate of Teresa Laughlin Deceased.

Audit of account of executors. Before Bolger, J.

Exceptions to adjudication dismissed and final decree entered, before Van Dusen, P. J., Sinkler, Klein, Bolger, Ladner and Hunter JJ., opinion by Hunter, J., in which Van Dusen, P. J. and Bolger, J., concurred, opinion by Ladner, J., in which Sinkler and Klein, JJ., joined, concurring in part and dissenting in part. Exceptants appealed.

W. Bradley Ward, with him Charles G. Gartling and Lemuel B. Schofield for appellants.

Joseph V. Somers, for appellee.

Baldrige P. J., Rhodes, Hirt, Reno, Dithrich and Ross, JJ.

OPINION

RHODES, J.

These appeals are from the dismissal of exceptions to a decree of distribution, and involve the construction of the will of Teresa Laughlin. Testatrix died on January 16, 1941, leaving a will dated December 28, 1937. She was survived only by three children, Henry Laughlin, Stella M. Shannon, and George Laughlin, all of whom are sui juris. Henry Laughlin and Stella M. Shannon are the appellants.

Testatrix in item one of her will directed payment of her debts and funeral expenses. She then provided 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."

Then follows a direction to the trustee to expend, if necessary, principal and income for the benefit of George and his dependents, in the trustee's unrestricted discretion, and certain other trust directions not pertinent to the present issues.

After thus providing, the foregoing item concludes as follows:

"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 family of George Laughlin, decedent's son, consists of George himself, his wife, and six children. Two children are minors, and a guardian ad litem was appointed for them. Two adult sons are in the armed forces of the United States and presently serving overseas, and a trustee ad litem was duly appointed for them.

The total amount of the obligations listed against George is $ 9,533.09. The auditing judge treated this sum as an advancement, considered it repaid to the estate by George, divided the total among the three children, and then deducted the advancement from the share of George. The doctrine of hotchpot was applied in the distribution of the estate. The auditing judge further directed that the fee of the guardian and trustee ad litem be charged against principal generally.

Exceptions were filed by appellants to the method of distribution and to the direction by the auditing judge that the fee of the guardian and trustee ad litem be paid out of the whole estate.

The judges in the court below were unanimous in their opinion that the exceptions relative to the fee of the guardian and trustee ad litem should be dismissed, but were equally divided as to those exceptions which involved the interpretation of the will. All exceptions were therefore dismissed and the adjudication was confirmed absolutely.

The differences in view arise out of the application of the doctrine of hotchpot, and consideration of the sum as an advancement. Smith Estate, 350 Pa. 418, 420, 39 A.2d 513. It is true that the doctrine of hotchpot makes for general equality, and that the law leans toward equality (Hirsh's Trust Estate, 334 Pa. 172, 177, 5 A.2d 160; Doyle et ux. v. McKean's Estate et al., 132 Pa.Super. 285, 288, 200 A. 715), but it is fundamental that the function of courts is to construe, not to make, a will for the testator (Grothe's Estate, 229 Pa. 186, 190, 78 A. 88). It is likewise true that there is a presumption that the heir is never to be disinherited except by plain words or necessary implication; however, the presumption cannot be permitted to defeat the intention of a testator, which is expressed in apt words or appears by clear implication. Grothe's Estate, supra, 229 Pa. 186, 190, 78 A. 88; Friday's Estate, 150 Pa.Super. 352, 28 A.2d 332.

Presumptions are applied, and resort is had to rules of construction in determining the disposal of property, only where the language of a testator is not clear, and there is ambiguity in the meaning of his words. Conner's Estate, 286 Pa. 382, 388, 133 A. 545; Ludwick's Estate, 269 Pa. 365, 370, 371, 112 A. 543; Rosengarten Estate, 349 Pa. 32, 37, 38, 36 A.2d 310. Technical rules of construction must give way to the plainly expressed intention of a testator. Wright's Appeal, 89 Pa. 67, 70. Such intention, once determined, will be effectuated unless in contravention of some established rule of law or public policy. Mereto's Estate, 311 Pa. 374, 377, 166 A. 893.

Our Supreme Court has said that "An advancement . . . is a pure and irrevocable gift, by a parent in his lifetime, to his child, on account of such child's share of the estate, after the parent's decease: Miller's Appeal, 31 Pa. 337; Long's Estate, 254 Pa. 370, 98 A. 1066; Harrison's Estate, 298 Pa. 514, 148 A. 704. It is to be treated as if repayment had been made to the estate, the total divided among the heirs, and the advancement deducted from the share of the one advanced. The whole is placed in hotchpot, the advancement added and the total divided: Whitman's Appeal, 2 Grant. Cas. 323; Wagner's Appeal, 38 Pa. 122; McConomy's Estate, 170 Pa. 140, 32 A. 608; Doverspike's Estate, 61 Pa.Super. 318": Smith Estate, supra, 350 Pa. 418, pp. 419, 420, 39 A.2d 513. However, the application of the doctrine of advancements is restricted to cases of intestacy (Loesch's Estate, 322 Pa. 105, 109, 185 A. 191; Act of June 7, 1917, P. L. 429, § 22, 20 PS § 135), except in the event of a will which therein clearly expresses otherwise, or where the donor died intestate as to part of the property (McKibbin's Estate, 207 Pa. 1, 5, 56 A. 62; O'Connor et al. v. Flick, 271 Pa. 249, 253, 114 A. 636).

Our only inquiry is in regard to the actual provisions of testatrix' will, and the criterion of their construction is the meaning of her words. Mizener's Estate, 262 Pa. 62, 66, 105 A. 46; Hogg's Estate, 329 Pa. 163, 166, 196 A. 503; Rosengarten Estate, supra 349 Pa. 32, 38, 36 A.2d 310. ...