Sponsler's Appeal , 107 Pa. 95 ( 1884 )

Mr. Justice GokdON

delivered the opinion of the court, October 6, 1884.

On the 19th of November, 1880, Alfred L. Sponsler, now deceased, made his will, in which he devised, inter alia, as follows : “I also give and bequeath to her, the said Alice, fifteen shares of second preferred Cumberland Valley Railroad stock, and one. second mortgage $500 Bond (No. 1), of said Railroad Company.” Afterwards, on the 28th of June, 1882, he added a codicil, the first paragraph of which is in the language following : “ I further give to my cousin, Alice Rheem, in addition to what I have given her by my will, fifteen shares of Cumberland Valley Railroad stock, preferred; one Cumberland Vallejo Railroad 8 per cent, bond, and 80 shares of Carlisle Deposit Bank stock.” There is in these papers nothing that presents the slightest ambiguity. The testator, some eighteen months after the making of his will, seems to have come to the conclusion that he would add to that which he , had bequeathed to his cousin fifteen shares of the preferred stock of the Cumberland Valley Railroad Company, one 8 per cent, bond on the same company, and 80 shares of the stock of the Carlisle Deposit Bank. His language is clear and positive ; “ I further give to- my cousin, Alice Rheem, in addition to what I have given her by my will; ” and were it not for something dehors the will itself, ^here could be no question raised as to the testator’s intention. The bequests in both the will and codicil, with the single exception of the bond designated as No. 1, are general. Any 8 per cent, bond, and any 15 shares of the preferred stock of the Cumberland Valley Railroad Compan}'-, would meet and fulfil the donation as expressed' in the instrument last mentioned. But it is argued on behalf of the appellant that because the testator had, at the time of the making of his will and codicil, and also at the time of his death, but 15 shares of the stock mentioned, therefore, the original bequest, at least as to the stock, must 'be taken as specific, and the bequest in the codicil as repetitive. This, however, is an attempt to make the character of the gift depend upon an intention which must be discovered, if at all, extra the will; that is to say, upon the fact that the testator had but 15 shares of stock. Bub we cannot overlook the fact, that this is a doubt raised outside of the papers, and that extraneous circumstances of this kind cannot be considered, if we are to follow the well settled canons of construction, when the testament itself is clear and certain. Looking upon that instrument alone, and, as we have already remarked, there is nothing at all ambiguous in it. Had he, in the first place, bequeathed 80 shares of this railroad stock to his cousin instead of 15, no one would have hesitated as to the character of the bequest merely because it turned out that he, in fact, owned but 15 such shares. How then, can it alter the matter that his first gift was of 15 shares, and that afterwards he added 15 additional shares? As he says, clearly as language can make it, “In addition to what 1 have given her by my will.”

Admitting, however, that the first bequest was specific; what made it specific ? Certainly nothing but the fact that he happened to have just 15 aliares of the stock. How then as to the second bequest? It certainly must be general, for there is nothing in the codicil or out of it tending to qualify the gift. But this is said to be but repetitive; the testator intended the stock already given. If, however, intention is to be gathered from unambiguous expression, this theory cannot be adopted, for the testator has stated in language that cannot be misunderstood that what he gives to the appellee by the codicil is in addition to that given her by the will. There is thus nothing left to the appellant but the hypothesis that the testator, not having his will before him when the codicil was drawn, must have forgotten his previous gift, hence, repeated it in the later instrument. This, at best, is but a surmise that cannot be allowed to override the positive language of the testator, and it does not follow that he would have directed differently had the will been before him.

We have carefully examined the able argument of the learned counsel for the appellant, and find it based on two assumptions that, in our opinion, he has failed to sustain. They are, first: that there is no evidence in the papers above named indicative of testamentary intent as to the subject-matter in controversy; that is, as we understand it, which would of itself determine whether the legacy in the codicil is cumulative or merely repetitive. Second : that the original legacy is specific. As to the first, we have but to repeat that no one can fail, on reading the will and codicil, to come to the conclusion that Alice Rheem was to have 30 shares of the Cumberland Valley Railroad stock, and doubt arises, not from the language of these papers, but from the altogether extraneous fact that, at the time of their execution, he happened to own but half this amount of the said stock. Neither can the second assumption be sustained, for there is nothing in the language used to individuate the stock shares. Had he owned a thousand such shares, any 30 would have answered the bequests; so bad he owned none, the purchase of a like number, or their money value, would have fulfilled' the intent of the testator1. ¥e repeat: the whole argument is founded on the fact that the testator had, at the time of the making of his will, but 15 shares of this stock; had he had more or less, or none at all, there would be no place for contention, for then there could be no doubt as to the generality of the legacy.

Now, whilst we are willing to admit that if we are to go out of the body of the will for evidence of intention, the fact here mentioned must be allowed to have its weight in the way of making the first bequest specific, though it would by no means be conclusive, yet as this same fact will not apply to the codicil, it follows, unless we agree to hold that the legacy therein- contained is but a repetition of the previous one, the appellant’s contention has no foundation. But to assume a repetition of the former gift is something that we cannot but consider altogether unwarrantable. We may admit the force of doubts and surmises, but they are not substantial enough to induce us to revise a plainly written will.

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