Stille's Estate , 69 Pa. Super. 56 ( 1918 )

Opinion by

Kephart, J.,

Alfred Stille, the testator, left to survive him a son, Henry M. Stille, and two grandchildren, Lina Ives Brinton and Alfred S. Ives, they being children of a deceased daughter, Maria S. Ives. Alfred S. Ives died without issue during the lifetime of his sister and uncle. Mrs. Brinton at that time had three children, two being minors, and Henry M. Stille four children, all of age. By the will of Alfred Stille he devised and bequeathed his residuary estate to a trustee, in trust to pay one-quarter of the income to his granddaughter for life, one-quarter to his grandson for life, and one-half to his son for life. Upon the death of each, the trustee was to hold the same proportion of principal to and for the use of their respective issue. And in the case of the death of a grandchild without issue, to and for the use of the other grandchild, or, in case of such other’s prior death, to and for the use of the other’s issue. And in the case of the death of his son without issue, to and for the use of the other two grandchildren, or, if previously deceased, their issue. Or, to more clearly state the scheme of disposition by considering what may be called the “Alfred” share over which this contest is predicated —and this scheme with respect to the “Alfred” share is the same as the other grandchild and son except the nomineé of the remainder — (a) the testator directed that the trustee should pay to Alfred during his life one-quarter of the income of his residuary estate; (b) that on Alfred’s death the trustee was to hold one-quarter of the trust estate for the use of his child, children or issue per stirpes; (c) should Alfred die leaving no child, children or issue him surviving, then the one-quarter of the trust estate was to be held in trust to and for Lina Ives Brinton; (d) or, in case she shall then be dead, to and for her child, children or issue per stirpes.

We will consider the various clauses in the will which affect the disposition of the testator’s property, and the effect of Alfred’s death, without issue, on the one-quarter of the trust estate, the income of which had been paid to him during life, before discussing the subsequent provisions which might have a tendency to operate against the conclusion reached with respect to this part of the will just quoted. By it Lina, and the children or issue of Alfred, had alternate remainders: Dunwoodie v. Reed, 3 S. & R. 434, 435; Frasier v. Scranton Gas and Water Co., 249 Pa. 570; Taylor v. Taylor, 63 Pa. 481. The vesting of the estate in the children, if Alfred had had children, would cause Lina’s remainder to be absolutely void, and so the vesting of the estate in Lina absolutely renders void the contingent remainder in Alfred’s issue. Alternate remainders in fee are good as contingent remainders. Had Alfred died leaving issue, under the language in the will the Statute of Uses would have converted the “Alfred” share into an absolute estate in such issue, though a use or spendthrift trust had been imposed on the original share during Alfred’s life in his favor. Such restriction did not appertain to nor was it imposed on that share as it would go to the children or issue. The trustee, under the will, was to hold the “Alfred” share “to and for the use of any child or children of my grandson, and the issue of any deceased child or children of his who may then be dead leaving issue in equal parts and shares per stirpes.” The will thus far raised no remainders or future interests to be protected or preserved by the trust just mentioned, and as the trust created was for Alfred’s benefit, it ceased at his death, at least for the purpose it was created. There was no active duty to be performed and it was therefore a dry trust. The statute of uses was intended to operate on language such as that used in the will. It has been suggested that being a passive trust, there being nothing for the trustee to do but distribute the estate, the cestui que trust, Lina, was entitled to an assignment of this quarter. See Bradley’s App., 15 Philadelphia 656; McCune v. Baker, 155 Pa. 503. We are assuming that the child or children were over age at the time of Alfred’s death. If they were under age, that would not disturb the vested character of the estate in such issue, the time of enjoyment of the corpus being postponed by the will until the minor arrived at the age of twenty-one: Siegwarth’s Est., 33 Pa. Superior Ct. 622.

We have dwelt somewhat at length on this subject to more clearly bring out subsequent provisions of the will. Alfred died without leaving any child, children or issue surviving him, but left his sister, Lina, to survive him. Under the will, the “Alfred” one-quarter of the capital was to be held in trust “to and for my granddaughter the said Lina Ives Brinton or in case she should be dead to and for her child, children or issue.” The same observation may be made with respect to this devise as wras made to that part of the will where it is assumed that Alfred died leaving children to survive him. The limitation over to Lina, followed by the words “and in case she shall then be dead then to; and for her issue,” meant an indefinite failure of issue and the provision “or in case she shall then be dead” means her death within the lifetime of Alfred, and if she be living at the time of his death she acquires an absolute estate in the Alfred share: McCormick v. McElligott, 127 Pa. 230; Throckmorton v. Thompson, 34 Pa. Superior Ct. 214; Stoner v. Wunderlich, 198 Pa. 158. This, as we said before, though the testator says it shall be held in trust, did not have the effect of imposing upon this share of the corpus the restrictions found in the original share, the income of which was paid to the grandchild. See Judge Penrose’s opinion, in Lang’s Est., 16 Philadelphia 308, wherein he said: “It is an established rule that restrictions upon original shares do not extend to accrued shares in the absence of a clearly expressed intention to that effect: Masden’s Est., 4 Wharton 428; Gibbons v. Langdon, 6 Simons 260.” Livezey’s Est., 245 Pa. 230; Ware v. Watson, 7 D. M. & G. 248; Moore’s Trusts, 10 Hare 171; Mann v. Fuller, Kay 624.

It is quite clear then that up to this point in the will when Alfred died Lina took an absolute estate. It is after this we find ourselves in difficulty. If we attribute to the testator’s language the ordinary and accepted meaning of words, it is impossible to carry out his will exactly as it is written. If we agree with the appellee we are bound to disregard a paragraph which the testator intended to be fully operative. To sustain its contention would be to postpone the devolution of the testator’s property not only contrary to the ordinary and natural manner both as to time and persons, but inject into the estate uncertainties never contemplated by the testator. The appellee maintains that this positive grant of an absolute estate in the “Alfred” share should be set aside and in its place a life estate in Lina should be substituted with alternate remainders in fee to her children, to her uncle, Henry, and to the College of Physicians. It urges that two subsequent clauses in the will have the effect of reducing this absolute estate to a lesser estate. The clauses in question are as follows: “(A) In case both of my grandchildren......shall die without leaving any child, children or issue surviving ......then and in that case the tioo-fourths part of the said trust estate which Avere held in trust for their lives shall be held in trust to and for my son, Dr. Henry Mandeville Stille, if then living, and in case he shall then be dead to and for his child, children or issue per stirpes. (B) in case all of my said grandchildren and also my said son shall die without leaving any child, children or issue them surviving then and in such case all of the said trust estate shall pass to and become vested in the College of Physicians.” Before discussing these two paragraphs we will now refer to a preceding paragraph in the will which appears after the bequest or devise to the son and grandchild, and, as we view the subject, its operation must be postponed beyond the time mentioned or it materially assists in determining the question before us. It provides that at the death of the son or either of the grandchildren the shares shall go to their “child or children”; the capital was not to be transferred to the children “until they become of full age,” and the income from their shares during minority Avas to be applied to their maintenance and support. Here is a positive direction that had Alfred died leaving children who were of full age, such children would have been entitled to the corpus of the estate. Siegwarth’s Est., supra, and other authorities that may be cited. To sustain appellee’s contention we must hold that this clause is inoperative and the children would not take until they outlived both Lina and Henry that there might not be a remote possibility of death without issue. As an illustration, Henry, the son, has now four children over age; if he should die his children would not be entitled to the corpus of the “Henry” share until Lina died (Alfred being dead). This it claims is necessary to meet the language of the will that there must be some one of kin with capacity to take the testator’s property under his will. The testator did not declare in his will that Henry’s issue would not take unless such issue survived the living grandchild, and the same may be said of Lina’s issue with respect to Henry. Further, what is to become of the income after the children arrive at the age of twenty-one years? The testator provides for its application until the child is twenty-one but not after-wards because he has given the principal to the children. There was not nor could not be a direction to accumulate the income (Act of April 18, 1853, P. L. 503), and the testator did not die intestate as to such income. As was said in Pennsylvania Company’s App., 6 Sadler 173-176, “If it is to be equally divided but the period of distribution to the children is postponed to the death of the surviving life tenant, then there will be an intestacy in one share from the earlier death until that time.” In that case the court founded its decision on such intestacy, which decision will be commented on later. If we sustain the operation of this clause until Lina and Henry die, we not only hold up the distribution of the estate and cause it to he dependent on contingencies never contemplated, but prefer as remaindermen persons who aro not the next of kin, and this not only applies to a portion of the estate but to all of it. To do it we declare an intestacy as to a part of the estate, contrary to the express intention of the donor, while an orderly arrangement will secure to the College of Physicians just such part of this estate that the testator meant that they should get. The testator did not implant the ultimate remainders as being the main purpose of his will. They were, on the other hand, the remote possibilities. It is not necessary to await the death of the survivor of the grandchildren and son before a distribution shall be made of the share of the deceased parent as represented by its income. There is no doubt that it was the intention of the testator that the children should take the parent’s share immediately upon death, the enjoyment postponed until they arrived at majority.

With this aspect of the will in mind, assuming that Alfred had died leaving issue, how would it be possible to have later complied with the testator’s language “if both of my grandchildren should die......the two-fourths part of my estate shall be held in trust to and for my son Henry”? The share devised absolutely to AJfred’s children would pass by inheritance from them as their estate at death. It would not go as the testator’s property to Lina or to Henry. The Lina share, on Lina’s death without issue, would pass under the will, but it could not fill the exact words of this provision that two-fourths was to become a part of the Henry share. Or, to take this “Alfred” share as it now stands, it vested in Lina absolutely, and at her death passes as her estate. She had a life estate in her original quarter, that is, In the income. At her death, without Issue, that quarter will pass under the testator’s will. It is but one-quarter of the estate. We cannot presume that the testator intended that there should be an intestacy as to this quarter, represented by Lina’s income, any more than he intended an intestacy as to the income of the children referred to above. By such intestacy the income or property would revert to the heirs of the testator. As to income see Nagle’s Est., 83 Pa. Superior Ct. 93-96. But it was to pass under Ms will. It is the duty of the court to construe his language to effectuate that purpose, so without doing violence to its ordinary meaning there will be no intestacy and the entire estate will be disposed of as contemplated. It is not difficult if you follow the testator’s plan as he expresses it in the principal part of the will as is here first quoted. He deals with each quarter separately and attaches to them estates which, when the parties appeared with capacity to take, took the entire estate. Realizing, however, that there might be a possible intestacy, he provides for ultimate remainders and cross-remainders to prevent it. If, instead of saying “both” in the clause (A) just referred to, he had said in the “Alfred” share, “remainder to his children, if any, if not, to Lina, and if she be dead to her children, and if no children or issue survive, then to her Uncle Henry, and if he be dead to his children, and if no children survive, him to the College of Physicians,” and had used similar language with respect to the other shares, it is quite evident that there would be no question here, and that Henry, the son, would take Lina’s share or Alfred’s share in case either died without issue and there was no issue of the other grandchild to take. That is, we take it, what he meant when he used the word “both.” It is manifest he did not use these words “both” and “two-fourths” in their conjunctive or entire sense, but in a several or distributive sense, and had reference to each one of the children, i. e., the survivor. The two-fourths referred to the shares of the two children not jointly but separately, independently, as identifying them, and in line with the preceding devise of the several estates. Two-fourths of the estate was not held jointly in trust for their lives when this clause of the will went into effect. One-fourth was held for Alfred’s life and one-fourth for Lina’s. In that sense two-fourths was held in trust for their lives but a quarter ceased as a trust estate on death with children. What the testator meant was the two-fourths or such part of it that was left if either grandchild should die without issue and there was no one in being who could be substituted under the will. Should Lina die without issue, Henry, if living, would be such person. The words are used in a descriptive sense, not to consolidate the various shares or read into the disposition of accrued shares,, trusts and conditions not thought of by the testator. And when you reach the devise to the College of Physicians, it has reference to the children remaining who die without issue and there is no kin of the testator who under the will can be substituted. “All” is used in the sense of each one, or respectively, and in the same light as both. All of the estate means all of the estate that is left with no one of kin who can take under the will. Referring to the Pennsylvania Company’s appeal, supra, affirmed by the Supreme Court, in that case the property was given to trustees to lease and demise the real estate and invest the personal estate and pay over the income to the wife during the period of her natural life, and after her death in trust to pay over and distribute the entire income and profits to his two daughters, Madeline and Mary during all the period of their natural lives, and from and after the death of his said two daughters, to give his residuary estate unto the child or children, respectively, of his said two daughters and the issue of such of them as may be then deceased, share and share alike. Mary died leaving one child. Madeline was still living and the Pennsylvania Company attempted to hold the income from Mary’s share as an active trust until the death of Madeline. The auditing-judge awarded the one-half of the residuary estate to the minor absolutely. Commenting upon the will, Judge Ashman, who wrote the opinion confirming Judge Pen-rose’s adjudication, speaks of the testator’s line of thought as treating the different interests as separate estates, and in commenting- on the peculiar phraseology of the will where they are apparently joined until the death of the survivor, says: “The exceptants would draw from this the inference that, until both daughters should die, the estate was to remain intact. They ask how, if the estate were divided at the death of one daughter, could all of it remain for division at the death of the surviving daughter? It would not be easy to answer this inquiry if the rules of interpretation compelled us to subject the language of a will to the same canons of criticism by which we approve or condemn a treatise on logic.”

In an effort to arrive at a correct solution of the problem before us, we have kept in mind that & positive grant should not be taken away by implication; there is no presumption of intestacy; the heir is always to be preferred in the disposition of property; where we are in doubt as to the character of an estate that has been devised, judicial inclination is to prefer an absolute estate to a contingent estate, or, in other words, a fee is preferred to a life estate; and immediate vesting of property as soon as possible is favored. It must clearly appear that it was the testator’s intention to cut down an absolute estate into a lesser estate. The natural tendency of the testator’s mind was to prefer his kin to outsiders. They were the chief objects of his bounty and around them he built up his will. When he desired to create a spendthrift trust estate to protect the son and grandchildren, he naturally created remainders and cross-remainders between them to keep the estate within his immediate family, and he would naturally plan the disposition of his estate in such manner as to prevent a possible intestacy that might arise from a lack of kin to take a part or possibly all of his estate. In the use of language he may have inaptly beclouded the main purposes, nevertheless, if the court is able to correctly ascertain the true intent, it should give effect to it. That can be arrived at by a consideration of the entire document, and first, the chief thought or concern of the testator from the language used. If that is confusing, or violence is done to the ordinary and accepted meaning of words, then we should endeavor to harmonize such language to have it conform to the main purpose by a construction that will safely reflect the testator’s purpose. There is no occasion to invoke the aid of artificial rules unless there is some ambiguity or uncertainty in the testator’s language: Horwitz v. Norris, 60 Pa. 261; Thompson’s Est., 229 Pa. 542.

We therefore hold that the appellant, Lina Ives Brinton, took an absolute estate in the “Alfred” share, and is entitled to receive that share at this time in the distribution of the property. The decree of the court below is reversed and the record is remitted that distribution may be made in accordance with this opinion.