Lifter's Estate, In re

• Decision Date: 24 March 1954
• Citation: 103 A.2d 670,377 Pa. 227
• Parties: In re LIFTER'S ESTATE. Appeal of LIFTER. Appeal of GLBBONS.
• Court: Pennsylvania Supreme Court

Page 670

103 A.2d 670

377 Pa. 227

In re LIFTER'S ESTATE.

Appeal of LIFTER.

Appeal of GLBBONS.

Supreme Court of Pennsylvania.

March 24, 1954.

Sigmund H. Steinberg, Blanc, Steinberg & Balder, Philadelphia, for appellant Lifter.

Walter B. Gibbons, Philadelphia, for minors etc.

Israel Packel, Philadelphia, for appellee.

Before JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

The Federation of Jewish Charities presented to the Orphans' Court a petition for a declaratory judgment. All of the persons having any possible interest, present or remote, vested or contingent, were joined in the petition.

In Eureka Casualty Co. v. Henderson, 371 Pa. 587, at pages 591, 592, 92 A.2d 551, at pages 552, 553, Mr. Chief Justice Stern said: '* * * whether or not a court will take jurisdiction of a petition for a declaratory judgment or decree is purely a matter of judicial discretion. * * * It was said in Capital Bank & Trust Company's Petition, 336 Pa. 108, 111, 6 A.2d 790, 792: '* * * the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy * * *.''

The facts in the instant case bring it within the aforesaid requirements; the problems involved are so unusual and difficult, litigation was so imminent and inevitable, and the peril to the Federation was so great and immediate that we consider this to be an appropriate matter for a declaratory judgment.

Morris Lifter died August 16, 1948, leaving a wife, but no issue. His will dated January 24, 1947, was long and very involved--it covered 19 printed pages. Testator, after the usual provisions with respect to his debts and funeral expenses, made certain pecuniary gifts. In the 7th paragraph of his will he created a trust to pay $60 a month to his sister, who has since died, and gave all the rest of the net income to his wife for her life, with a discretionary power in the trustees to expend principal in her behalf. His wife is still living.

We then come to the pertinent and important provisions here involved:

'Eighth: Upon the death of my wife this trust shall terminate and the principal ¹ of the same, as it may then be, shall be paid over and distributed as follows:

'A. Personal Bequests

[There then follow 12 bequests, some of

them conditional and detailed.]

'B. Charitable Bequests

[Testator made 5 charitable bequests.]

'C. Residuary Estate

'(r) All the rest, residue and remainder of the said trust estate shall be paid over to the Federation of Jewish Charities of Philadelphia for the purpose of erecting, and provided they shall erect (beginning such erection within a period of not more than five years from the date of my death) a building for such humanitarian purpose or purposes as in the judgment of said Federation is most urgently needed at the time of such distribution, such building to be known as Morris and Effie B. Lifter Building; provided,

'1st--that if at the time of the death of my said wife, my said sister Annie Lang is living, the Federation shall bind itself legally to continue the payment to her of the sum of $60 a month as long as she lives; and provided,

'2nd--that the building so to be erected shall be free of all mortgages and ground rents and shall be paid for fully with the amount bequeathed to the Federation by me.

'In case the conditions of the foregoing bequest to the Federation of Jewish Charities of Philadelphia are not met within 60 days from the date of my death and the gift to the Federation therefore does not become operative, or if for any other reason or reasons the gift to the Federation does not become operative, then and in such case I direct that the remainder of my residuary estate shall be distributed among, and I give, devise and bequeath the same to, subject to an agreement among them to pay my sister $60 a month as aforesaid, those persons to whom I have made bequests under items (a) to (1) both inclusive, of this paragraph, each in the same proportion as the amount distributable to him, her or it, bears to the aggregate total to which all such persons are entitled to take under said items (a) to (1) both inclusive.'

A reading of the will makes it apparent that some of the provisions in the Eighth Paragraph are conflicting or at least create uncertainty. We shall therefore approach the problems in the light of the following principles:

The intention of the testator is the pole star in the interpretation of every will and that intention must be ascertained from a consideration of the entire will, including its scheme of distribution as well as its language, together with all the surrounding and attendant circumstances. In re Lyle's Estate, 374 Pa. 344, 97 A.2d 830; In re Brumbach's Estate, 373 Pa. 302, 95 A.2d 514; Newlin Estate, 367 Pa. 527, 80 A.2d 819; In re Anderson's Estate, 373 Pa. 294, 95 A.2d 674.

A Court has no power to rewrite a will to supply a testator's unexpressed intent, or to cover circumstances or conditions or contingencies which he apparently did not foresee or provide for.

Moreover: 'The Court is always reluctant to supply words of material import to a will: In re Elkins' Estate, 339 Pa. 193, 12 A.2d 83. '* * * interpretation is never to assume the proportions of reformation. * * *'' In re Berger's Estate, 360 Pa. 366, 371, 61 A.2d 855, 857.

"Words and limitations may be supplied or rejected when warranted by the immediate context or the general scheme of the will, * * *'. Bender v. Bender, 226 Pa. 607, 613, 75 A. 859, 862. See also In re Jacobs' Estate, 343 Pa. 387, 392, 22 A.2d 744.' In re Davis' Estate, 346 Pa. 247, 251, 29 A.2d 700, 701.

'A word or words may be supplied where there is a clear inference from the whole will that the words were omitted [by mistake]. Hellerman's Appeal, 115 Pa. 120, 8 A. 768; [In re] Jacobs' Estate, 343 Pa. 387, 22 A.2d 744; [In re] Wittmer's Estate, 151 Pa.Super. 274, 30 A.2d 197; 2 Page on Wills, 3d Ed., page 861.' Riegel v. Oliver, 352 Pa. 244, 247-248, 42 A.2d 602, 603, 161 A.L.R. 177.

We shall first analyze, in the light of the foregoing principles, the various provisions of the reiduary gift to...