Ferry's Appeal , 102 Pa. 207 ( 1883 )

Mr. Justice Gordon

delivered the opinion of the court, February 26th 1883.

The cardinal canon for the construction of wills is that which requires us to ascertain, and give effect to, the intent of the testator, or as it is stated by our brother, Mr. Justice Mercur, in the case of Middleswarth’s Adm’r v. Blackmore, 24 P. F. S. 415, regard must be had to the whole scheme of the will, and if it is found that a particular intent is inconsistent with the general intent, the former must give way to the latter. Another rule is that cited in the brief and able opinion of the court below, from the'case of East v. Cook, ‘2 Yes. Sr. 30 ; that is-to say, we are not to consider exactly the prder in which the words are placed, if a different arrangement will better answer the apparent intent of the testator. A third rule is, that no presumption of an intent, on part of the testator, to die intestate of any part of his property, is to be made, when his words, as found in the will, can fairly be construed to dispose of the whole of it.

The mere statement of these rules is, in itself, sufficient to dispose of the case before us. That Dr. Scoffin did iutend to dispose of his whole estate, isa matter that, from the whole tenor of his will, is not doubtful. That there was such a disposition of it for and during the life of his wife is, we believe, not disputed, and the only shadow of a reason urged against the absolute and final character of that disposition is supposed to be found in that part of the will in which the testator attempts to define the conditions under which his married daughters shall have their bequests of $1,000 each.

We fully agree with the court below, that the will, from the beginning to the end, most clearly shows that the main design of the testator was to provide for his wife and unmarried daughters, including such as might happen to be widowed. If, however, we adopt the theory of the appellant, and wipe out the residuary clause, we give the preference, by $1,000 each out of this small estate, to those daughters who may chance to have husbands at the time of their mother’s death. And why? That, says the appellant, the sum thus .given may stand as an offset or equivalent for the maintenance of the unmarried daughters in their father’s house! In other words, the? scant subsistence which this small estate can afford to these helpless girls, during their mother’s life, is to be charged up to them, and finally to be deducted from the share that may fall to them. But how, suppose one of them happens to marry the day before the mother’s death ? She is, nevertheless, to have her $1,000, though she has had her maintenance with the others. Here is a fact which at once breaks down the appellant’s hypothesis, and still leaves the assumed preference for the married daughters unaccounted for. Perhaps it was intended as a kind of premium upon marriage? But in the way of this supposition stands the fact, that though a daughter had been married, if she was unfortunate enough to lose her husband before the time fixed for the distribution of the estate, she was entitled to no preference, but took only as one of the unmarried children ; and yet we can hardly suppose that the testator had it in mind thus to reflect upon an unfortunate daughter for the loss of her husband. The consideration of these things show us most conclusively what the testator did not mean, and so strengthens the position assumed by the court below. If, however, in pursuance of the rules above stated, we allow the residuary clause to stand, and disentangle it from the awkward and unskillful language-by which it is surrounded, everything in the'will becomes clear and unambiguous. The married daughters are to have each $1,000, because they are to enjoy no other part of the decedent’s property, and to the unmarried daughters, whether widows or spinsters, there is no specific bequest, because to them goes the residue of the estate. We therefore approve of the decree of the Orphans’ Court, because, as it seems to us, it enforces that construction of the paper in controversy which most clearly reveals the will of the testator.

The appeal is dismissed at the costs of the appellant, and the decree is affirmed.