Hood v. Pennsylvania Society to Protect Children from Cruelty , 221 Pa. 474 ( 1908 )

Per Curiam,

It is quite true, as urged by the appellants, that when a judicial decision is rendered the law is not presumed to be changed by it, but to have been the same before as after, although previous decisions may have been to a different effect. This is the general rule, but it is not to be applied-in all cases without discrimination. On the subject of interpretation of wills it meets the cardinal and controlling principle that the intention of the testator must prevail. It is undeniable that this principle had in certain classes of cases been so overlaid and hedged in by arbitrary canons of construction as to become a subordinate instead of a d'ominant rule. As was said in Mulliken v. Earnshaw, 209 Pa. 226, “ The want of harmony-in'the cases dealing with the period-to which the words ‘then living,’ or similar phrases, in a will should be applied, arises mainly from the artificial canon of, construction that the period intended is presumed tó be the death of the testator. The canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. ' Like all artificial rules it had the constant tendency to become an arbitrary fetter, instead of a mere instrument for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature'of things why the actual meaning 'of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract.”

In the present case, therefore, as in all others, the question is, what was the intention-of the testator, and that is to be ascertained by what the testator understood to be the legal meaning of his language at the time he used it. It is practically 'conceded that at the date of the testator’s will the gift of a life estate to his daughter and after her decease then to her children “ her surviving,” gave the daughter’s daughter a vested remainder. That being the generally accepted meaning of the language at the time the testator used it, must, in the absence of anything to the contrary, be accepted as the expression of his actual intent.

On this point we adopt what was said by the learned judge below.

Decree affirmed.