Risk's Appeal , 52 Pa. 269 ( 1866 )

The opinion of the court was delivered, May 15th 1866, by

Woodward, C. J.

The authorities cited by the learned counsel of the appellants, do justify their proposition, that w'hen a testator designates the objects of his bequest or devise by their relationship to a living ancestor, such legatees or devisees take equal shares per capita. In great strictness of speech, the living of the ancestor, who is referred to only to designate the objects of the testator’s bounty, excludes the per stirpes rule, which belongs properly to the statutes of distribution, and is a substitutionary rule, by which the children or next of kin of a deceased person who would have been an heir, are placed in his stead.

But, like all other rules of construction, when applied to wills, this one, that entitles children of a living child to take per capita, must be controlled by the general intention of the testator. Not that the principle of the per stirpes rule is to be preferred because adopted by the statutes of distribution, for it may be the very purpose of the testator, as it is his right, to take his estate out of the principles of the statute. But it is a reasonable presumption that the mind of the testator was familiar with the statutory rule of distributions ; and if 'we see in his will an intention to distribute according to that rule, we should give it effect all the more readily because it is provided by law for cases where there is no will. Why, then, should a testator make a will at all, if he means it should operate as the statute would operate without it ? He may desire to give legacies to those who would take nothing under the statute, or increased portions to some who would take — or if content that the rules of the statute shall apply to his whole estate, he may still desire to appoint his own executors. For one or the other, or all of these reasons, he may have been moved to make a will. Whilst we are not to hesitate to allow him to alter the descents provided in the statute, we are not, on the other hand, to presume, from the fact that he made a will, that he meant its construction should be at all possible points inconsistent with the statute.

In a word, a per capita construction is not to be forced upon a particular devise, because the devisees under that clause, had they taken under the statute, would have been per stirpes.

Now, when we read the whole will of John Stauffer and judge it ex visceribus rather than by the judicial constructions that have been placed upon other, and in some respects different wills, we find it impossible to doubt the soundness of the conclusions which were reached by the learned auditor and court below.

In the first clause he provides for his burial. In the second clause he provides for his wife for life. In the third he directs his real and personal estate shall remain unsold until the death of his widow, one-third of the income thereof to be paid to her, and two-thirds of it to accumulate till her death, and then the fund to be divided equally between his three “beloved children, George, Joseph, and Catharine now wife of James Risk.”

4. After the widow’s death the real estate was to be divided between his “ beloved children, George, Joseph, and children of Catharine Risk equally,” or if unable to agree upon such a division it was to be sold, and the money equally divided between my “beloved children George, Joseph and the children of my beloved daughter Catharine, wife of James Riskbut George was to have $1200 out of the proceeds of the sale, before division, and the residue to be “ equally divided as aforesaid between my beloved children George and Joseph, and the children of my beloved daughter Catharine, now wife of James Risk.”

5. Should Joseph die without lawful issue, his share was to fall back to George and the children of Catharine, but if they left issue they were to succeed to it.

It is observable that the special provision for the widow, for the accumulation of a fund from the proceeds of the personalty and real estate during her life, and for the preference of George as to $1200, were sufficient motives for making a will in this instance, whilst no motive is discernible for making each of the grandchildren equal with his own children, all of whom he repeatedly calls “ beloved.” He probably thought his daughter Catharine sufficiently provided for by the 3d clause, and by the fact that she had a husband, and therefore intended that her share of the residuum should rest in her children, but nothing warrants the conclusion that he meant her children to take more than would have been her share. Deriving his impressions no doubt from the statute of distributions he believed equality among his three children, after the preference to George, would be wise and just, and the only peculiarity of the will is that he gave Catharine’s share to her children instead of herself. This is exactly what the law would have done, had Catharine been dead and had he died intestate; and it is no objection to the will that whilst it might have altered the law of descent it did substantially adopt the policy of the law. Had he meant the children to take per capita he would doubtless have named them, but meaning that they as a class should be substituted for their mother and take one of three shares, he grouped them three times over in the 4th clause, as “ the children of my beloved daughter Catharine.” “ Equally” means that the class should share equally with George and Joseph. This is the grammatical construction of this adverb, for the names George and Joseph and the class are connected by copulatives that apply all the qualifying terms to them alike. Now if similar words in other wills have been interpreted devises per capita, it has been because no inconsistent interest was perceptible in the whole will, but in the preference to George and the equality provided for the rest, we find in this will an intent that is wholly inconsistent with a per capita division among Catharine’s children, and therefore we reject it without intentional violence to the authorities.

The judgment is affirmed.