Stevens's Estate , 164 Pa. 209 ( 1894 )

Opinion by

Mb. Justice Williams,

The will of the late Hon. Thaddeus Stevens was written by himself, and is a characteristic production. Its provisions are expressed in very few words and, generally speaking, with great clearness. Such ambiguity as exists in it is due to brevity in expression, and the .use of popular instead of technical words. Looking at it as a whole it is clear that he did not intend that his estate should go to his heirs as such, or that any part of it should be distributed under the intestate laws.

After a few legacies and two small annuities were provided for, he made an alternative disposition of the remainder of his estate. The first object of his bounty was his nephew, Captain Thaddeus Stevens, son of his deceased brother, Morrill Stevens. This young man, after the death of his father, was brought from Vermont to the home of his uncle, who seems thereafter to have stood to him in loco parentis. The provision made for him in the will was so drawn as to furnish the strongest possible argument in favor of a life of sobriety. It is as follows : “ If at the end of any five years Thaddeus (nephew) shall have shown that he has totally abstained from all intoxicating drinks during that time, the trustees may convey to him one fourth of the whole property; if at the end of the next successive five years he shall show that he has totally abstained from all' intoxicating drinks they may convey to him another fourth, being one half of the property; if at the end of another consecutive five years he shall show that he has abstained from all intoxicating drinks, they may convey the whole to him in fee simple.”' Here is a devise of the whole estate to his nephew on a single condition, that of abstaining, for fifteen years consecutively, from all intoxicating drinks. In case his nephew was unwilling or unable to comply with the condition, so that the estate could not vest in him, the testator had a second object of his bounty, which was in that case to succeed to his entire estate. The provision for this second object is as follows: “ If the life estate of my nephew, or rather the annuity of the said Captain Thaddeus Stevens of Pennsylvania, should expire before he has enabled himself to become entitled to the corpus, or fee simple, of my estate, then I dispose of whatever may remain as follows : If the aggregate sum shall then amount to fifty thousand dollars, without which no further disposition can be made, I give it all to my trustees to erect, establish and endow a house of refuge for the relief of the homeless indigent orphans. Those shall be deemed orphans who have lost either parent. I desire twenty thousand dollars to be expended in erecting suitable buildings. The residue to be secured in government securities bearing not less than six per cent per annum interest.” The ambiguity in this provision is found in the words “If the aggregate sum shall then amount to fifty thousand dollars, without which no further disposition can be made, I give it all ” etc.

The contention of the appellants is that this gift is conditional upon the amount of the estate at the death of Captain Stevens. If at that time the estate was of the aggregate value of fifty thousand dollars the gift was to take effect. If it was not of that value then the gift failed, the testator became intestate and his whole estate descended, less the legacies paid, to the heirs at law. The trouble with this position is that it disregards the intentions of the testator and it gives to an explanatory and parenthetic clause the effect of a condition. It is true that the question to be settled in giving construction to a will is not so much, what did the testator mean, as what is the meaning of the words he has employed? Hancock’s Appeal, 112 Pa. 532. But the words must be read according to their plain and ordinary meaning, taking the immediate context into view : Appeal of E. D. Howe et al., 126 Pa. 233. And, when necessary, the scheme of the will, and the character of other provisions in it, should be considered, so that the instrument may be interpreted as a whole. Looking over this will as a whole we conclude that the testator did not intend to die intestate. This is a legal presumption arising from the fact of his making a will: Ferry’s Appeal, 102 Pa. 207; Miller’s Appeal, 113 Pa. 459. But in the will before us it is not left to be gathered by presumption, for it is plainly expressed. The declaration of the testator is that if his nephew should die without entitling himself to the fee simple of his estate “ then (that is, in that event) I dispose of whatever may remain as follows. ... I give it all to my trustees to erect, establish, and endow a house of refuge for homeless indigent orphans.” No more apt words could have been chosen to show the testator’s intention, or to carry it into effect, than these words of absolute gift of all that should remain of his estate at the death of his nephew without having complied with the condition on which the gift to him depended. But when and how is this charity to be established? It is in the treatment of this subject that the testator sacrificed clearness to brevity.. The answer to the question “ when ” is found in a parenthetic clause. It is whenever the estate shall have an aggregate value of fifty thousand dollars; and until that happens no further disposition can be made of it.' Why ? Because, as the testator states, he wishes twenty thousand dollars to be invested in building and equipment and thirty thousand dollars on interest bearing securities as an endowment. Without this sum, or until it is within the reach of his trustees, the charity cannot be put upon the foundation the testator desires; and he does not wish anything done until it can be done in the way pointed out. The answer to the question “ how is given very clearly. The trustees are to procure a charter of incorporation. They are to see that admission is not made to depend on race, color, or religious belief of parents, that all eat at a common table, and share alike in all the advantages,of the house of refuge established. The gift to the charity is- thiis seen to" be absolute. The fee simple having failed to vest in the nephew, vests unconditionally in the charity. The only element of uncertainty in the gift is that which relates to the time when the trustees shall begin the work of erecting, establishing and endowing the charity. This the’ testator makes depend on the value of his estate at the time when the contingency happens that vests the title in the trustees for the charity. If at that time the value is fifty thousand dollars or upwards the trustees-.are required to enter at once on their work. If it is less than that sum then they must wait until it has reached fifty thousand dollars, “ without which no further disposition can be made.”

The testator’s plan requires the use of at least that sum of money, and if the aggregate value of the estate was less, then nothing could be presently done but to wait till the necessary sum was in hand. If the parenthetical words should be transposed and placed at the end of the sentence the meaning would be made to appear very clearly. The gift would then be in this form : “ I dispose of whatever may remain as follows : I give it all to my trustees to erect, establish and endow a house of refuge, but I do not want this work entered upon until the trustees shall have at least fifty thousand dollars at their disposal. Of this sum, twenty thousand dollars may be used to build and furnish a suitable building, and thirtjr thousand dollars or more, if more should be in the hands of the trustees, must be put at interest as an endowment fund.” The learned auditors reached the same conclusion in an elaborate and able report which the orphans’ court adopted as a correct exposition of the, will of the testator, and as the basis of the decree appealed from. When the last account was filed by the surviving executor, and the auditors were appointed, the value of the estate was something more than the sum named by the testator as necessary for the establishment of the charity.

The decree awarding the fund to the trustees, “ to erect, establish and endow a house of refuge for homeless, indigent orphans ” is in accordance with the directions of the testator, and it is now affirmed.