List's Estate

Decision Date13 April 1925
Docket Number22
PartiesList's Estate
CourtPennsylvania Supreme Court

Argued March 23, 1925

Appeal, No. 22, March T., 1925, by DeLoss Leroy List et al from declaratory judgment of O.C. Butler Co., Sept. T., 1924 No. 148, in estate of Joshua M. List, deceased. Reversed.

Petition for declaratory judgment as to parties entitled under will. Before HENNINGER, P.J.

The opinion of the Supreme Court states the facts.

Judgment as prayed for. DeLoss Leroy List et al., decedent's sons, appealed.

Error assigned was judgment, quoting it.

The declaratory judgment of the court below is reversed, and it is now adjudged that each of testator's children became entitled to a one-third interest in his residuary estate on the death of their mother; the costs of this appeal are to be paid by the estate of testator.

John H. Wilson, with him Jackson & Troutman, for appellants. -- Prima facie the first taker is the favorite of the testator and the principal object of his bounty; and, in doubtful cases, the law leans in favor of making the gift to him as effectual as possible, and in favor of the first rather than the second taker: Watson v. Smith, 210 Pa. 190; Barrett's Est., 22 Pa.Super. 74; Grim's App., 89 Pa. 333; Wilson v. McKeehan, 53 Pa. 99; McFarland's App., 37 Pa. 300; Rewalt v. Ulrich, 23 Pa. 388.

James E. Marshall, of Marshall & Watson, with him Painter & Painter and Zeno F. Henninger, for appellee, cited: Bender v. Bender, 226 Pa. 607.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

This appeal is from a judgment entered upon a petition filed under the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840. All possible interests were represented at the argument below and here, and they expressly declared they did not question the constitutionality of the statute; hence, for the reasons given in our opinion in Aaron v. Woodcock, 283 Pa. 33, we will not ourselves do so.

We are at a loss to understand why there was supposed to be any necessity for this proceeding. The only question raised is: Are the children or grandchildren of testator entitled to the corpus of his residuary estate in remainder, after the death of his widow? The petition, which was presented by the surviving executor, states that he had filed his account, which had been confirmed and showed a balance for distribution. If that proceeding had gone forward in due course, the point above referred to would have been decided, at least as expeditiously as it can be in this proceeding, by an interpretation of the same clauses of the will as we are now asked to construe. That was the normal course to pursue, and this is an unusual one, provided for the purpose of having issues speedily determined, which otherwise would be delayed, to the possible injury of those interested, if they were compelled to await the ordinary course of judicial proceedings. No other substantial reason existed for the passage of the statute, and hence where, as here, there was no necessity for resorting to it, it should not have been employed. As this is the first time such a status has appeared, and the only result of reversing the judgment below and quashing the proceedings, as we might well do, would be a second appeal to this court, after a decree of distribution on the executor's account, we shall decide the case on its merits. We do not propose, however, to allow the statute to be used hereafter, in cases clearly aside from its obvious purpose.

This is a case of "the jolly testator who makes his own will," with the expected litigation resulting. After the usual clauses (though somewhat unusually expressed), regarding the payment of his debts and funeral expenses, and providing for the marking of his grave, testator made certain bequests, including $3,000 to each of his three sons, and then directed the residue of his estate to be held in trust, upon the following terms and conditions:

"8th. I direct my executors or trustees to pay to my wife one-third of the income from that part of my estate which I have placed in trust, so long as she remains my widow, the remaining two-thirds to be divided between my three sons equally. At the death of my wife or remarriage my three sons shall receive this income in equal shares. I further direct that these payments be made each six months commencing one year after my death and the income for the first year after my death shall remain as part of my estate."

"10th. Should any of my sons die without issue, then that part of my estate which I have placed in trust shall be divided equally among the children of my sons living at the time of the death of my wife. (I mean to say that this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally.)"

Though all the sons were still living when the widow died, the court below was of opinion, under the foregoing parenthetical clause, that the grandchildren were entitled to the entire residuary estate, and hence so adjudged; this appeal by the three sons followed. In our opinion the judgment must be reversed.

The 8th paragraph throws but little light on the intention of testator, save, perhaps, as suggested by appellants, that, considering it from one viewpoint, the children would be entitled to the principal, because of the absolute gift of all the income to them, for an indefinite period, without any gift over of the principal. The rule thus relied on is well settled, but we do not think it necessary to invoke it here.

The first sentence of the 10th paragraph says: "Should any of my sons die without issue, then that part of my estate which I have placed in trust shall be divided equally among the children of my sons living at the time of the death of my wife." It will be noticed that this does not give to the grandchildren the whole of the trust estate, "should any of my sons die without issue," but only "that part of my estate," evidently meaning "that part" which the son so dying would otherwise have taken. In other words, it simply provided that if any of the "sons die without issue," during the lifetime of the wife, then "that part of my estate" which, but for that fact, would have gone to him, shall not go to the other sons of testator, but to the grandchildren. None of the sons died, however, and this substitutionary gift did not take effect.

The explanatory parenthetical sentence which closes the 10th paragraph, does not enlarge the gift to the grandchildren. It says "(I mean to say that this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally)." It will be noticed that here also testator does not give the whole of his estate to the grandchildren, as could easily have been done had it been intended. What he says is that "this trust shall end at the death of my wife and each grandchild then living shall participate in this division equally," that is, in the division of "that part of my estate . . . which shall be divided" in case "any of my sons die without issue." "This division," necessarily means the division already referred to, and, hence, as none of the sons did die before the time specified, there was no available gift to the grandchildren under either sentence of this paragraph.

What then is to become of this residue? Two suggestions were made: (1) That an intestacy resulted, in which event appellants would take; and, (2) As already mentioned, that a gift of the income, for an indefinite time, without any bequest of the corpus in remainder, carries with it a gift of the principal. We think we are not driven to adopt either view.

In Beilstein v. Beilstein, 194 Pa. 152, testator gave to his daughter the income of a certain property for life "but should she die without leaving a family" then it was to go to his own br...

To continue reading

Request your trial
42 cases
  • In re Johnson's Estate
    • United States
    • Pennsylvania Supreme Court
    • 2 mai 1961
  • In re Cryan's Estate
    • United States
    • Pennsylvania Supreme Court
    • 24 novembre 1930
    ...and otherwise assist in the administration of estates by declaratory judgments has been repeatedly exercised by the courts. List's Estate, 283 Pa. 255, 257, 258, 129 A. 64, was an early instance where the court below, and we on appeal, construed a will in such a proceeding. We there said th......
  • Johnson's Estate, In re
    • United States
    • Pennsylvania Supreme Court
    • 2 mai 1961
  • Kariher's Petition
    • United States
    • Pennsylvania Supreme Court
    • 23 novembre 1925
    ... ... 20 ... The ... terms of Terhan H. Kariher's will were intended to convey ... and are ample to convey all of the testator's estate: ... Eichelberger's Est., 274 Pa. 576; Lippincott's Est., ... 276 Pa. 283; Buch's Est., 278 Pa. 185; Reisher's ... Est., 261 Pa. 223; Jacob's ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT