Glasgow's Estate , 243 Pa. 613 ( 1914 )

Opinion by

Mr. Justice Moschzisker,

The testator left an estate, appraised at $5,489.54. The auditing judge, after allowing debts, expenses and pecuniary legacies to relatives awarded the net. balance, amounting to $4,199.22, to the appellants; but, on the hearing of exceptions to the adjudication, the Orphans’ Court declared the decedent intestate as to his residuary estate and distributed that fund among his next of kin, a sister and certain nephews and nieces; hence, this appeal.

The material facts in the case are correctly set forth in the opinion of the auditing judge published in connection herewith, except that the date when the testator “took ill” was between February 3 and 5, 1911, not “about the 8th of February,” as therein stated. The opinion overruling the award to the appellants does not differ essentially from the adjudication on the underlying facts, but the majority of the court below drew different inferences and reached other conclusions than those stated by the auditing judge. The judge .who heard the testimony concluded that the appellants “answer in all respects to the description of the residuary legatees” portrayed in the will; while the court in banc, after referring to some of the facts-found by the auditing judge and other evidence shedding light thereon, determined that, “the evidence does not bring these claimants within the description; even if there were doubt, it must be resolved in favor of intestacy, both by reason of the indeterminate and the indeterminable beneficiaries, and the lack of convincing proof.”

The opinion of the learned court below has had our careful consideration; but we feel that the auditing judge reached the right conclusion in supporting the will, and that his award to the appellants was justified by the proofs. At the time the will was executed the testator was seventy-five years of age, and knew that he was very ill; he had no immediate family, and was not on cordial terms with his sister, who was his nearest relative; he had lived with the appellants for years, and apparently looked forward to rewarding them for past kindnesses and for services he anticipated would be performed in the future, not by remuneration but by a substantial remembrance.; for reasons of his own, he preferred to designate his residuary legatees by a description which expressed the motive for his gift rather than by name; in this way, should those he had in mind not continue to perform the friendly offices anticipated, his gift would fail as to them and go to others, if any, who at the end of his days might by their deeds bring themselves within the description. The testator provided that, “Whomsoever takes care of me and nurses, and looks after my comfort during my last sickness or sees to it that I am properly nursed and cared for and given proper medical attention during my last sickness and a decent Christian burial after my decease,” should take his residuary estate. We cannot agree that the beneficiaries here described are “undeterminable” under the evidence at bar, or that there is a lack of “convincing proof” upon the point at issue. ' The will must be considered with a thought to the 'conditions under which it was written (Peterson’s Estate, 242 Pa. 330); and when it and all the surrounding circumstances are looked at reasonably, the appellants stand out clearly as aptly fitting the testator’s description of those to whom he desired the balance of his estate to go. We must assume the testator contemplated that a rational construction would be placed upon his words, and the thought expressed by the court below, that anyone could be held to come within the description who in any degree contributed to the care of the decedent during his last illness or subsequently had to do with his burial, does not impress us as a fair view of the will. We feel that the learned court failed to give a reasonable construction to the language employed by the testator, and that it gave undue importance to what it conceived to be the side lights in the evidence; whereas the auditing judge interpreted the words used in a reasonable way and was properly guided by what may be termed the controlling-facts shown by the proofs. Of course, the appellants in the performance of their good offices were at times obliged to act by and with others, and in so doing they called upon the decedent’s executor and some of his relatives; but the testimony shows that they first actually nursed and subsequently were the moving- force in the care of the testator up to the time of his death; moreover, they saw to it that he had the kind of burial that he desired. We conclude that the appellants are entitled to the fund awarded to them in the ádjudication.

The assignments of error are sustained, the final decree is set aside, and the record is returned to the court below with directions to dispose of the case as here indicated; the costs to be paid out of the fund.