Farrar v. Bingham, 68 App.D.C. 93, 95, 93 F.2d 252, 254. * * * Also see In re Patterson's Estate, 333 Pa. 92, 3 A.2d 320; Riegel v. Oliver, 352 Pa. 244, 42 A.2d 602; In re Worstall's Estate, 125 Pa.Super. 133, 190 Atl. 162. Where the language or provisions appearing in a will are ambiguous or conflicting, consideration will be given to the circumstances surrounding the making of the will and the declarations of the testator in order to determine the testator's intent.
See, e.g., In re Worstall's Estate, 125 Pa. Super. 133, 190 A. 162 (1937); Annots., 104 A.L.R. 282 (1936); and 14 A.L.R.2d 1244 (1950); Thompson, Wills, § 273 (3rd ed., 1947). There are certain exceptions to this construction, but they are not applicable to the instant case.
The word "children" does not ordinarily, and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term, is only permitted in two cases, viz., from necessity, which occurs when the will would remain inoperative, unless the sense of the word, "children" were extended beyond its natural import; and where the testator has clearly shown by other words that he did not intend to use the term "children", in the proper actual meaning, but in a more extensive sense': Clark's Estate, 61 Pa. D. C. 34, 36, Hunt's Estate, 133 Pa. 260, Worstall's Estate, 125 Pa. Super. 133, Gross Estate, 80 Pa. D. C. 595, 598. " `Where a gift is to the children of several persons, whether it be the children of A or B, or to the children of A and the children of B, they take per capita, not per stirpes.' 2 Jarman on Wills, 1687 (7th Edition), Lenhart's Estate, 344 Pa. 358, Love Estate, 362 Pa. 105, 108.
When the time to distribute arrived, it of course became necessary to determine who should take. In the absence of identification in the will, the name Mary McCarty being insufficient in the circumstances disclosed, an ambiguity or inadequate description presented itself requiring extrinsic evidence to determine the fact: Miller's Estate, 26 Pa. Super. 443; Morris's Estate, 76 Pa. Super. 50; Byrne's Estate, 121 Pa. Super. 550, 184 A. 303; Worstall's Estate, 125 Pa. Super. 133, 190 A. 162; Wittmer Estate, 151 Pa. Super. 274, 277, 30 A.2d 197; Brownfield v. Brownfield, 12 Pa. 136, 144; Newell's Estate, 24 Pa. 197, 199; Root's Estate, 187 Pa. 118, 40 A. 818; Metzger's Estate, 222 Pa. 276, 281, 71 A. 96; Mizener's Estate, 262 Pa. 62, 105 A. 46; Lockwood's Estate, 344 Pa. 293, 25 A.2d 168; Harris Estate, 351 Pa. 368, 380, 41 A.2d 715. We have recited the circumstances in which the testatrix made her will and we all agree that it clearly appears that Margaret McCarty is identified as the beneficiary intended by the testatrix though designated as Mary McCarty.
Furthermore, there is a strong presumption that a testator does not intend to die intestate: Lyle Estate, 374 Pa. 344, 97 A.2d 830. A will must be construed to avoid an intestacy, if it is possible to do so: Carmany Estate, 357 Pa. 296, 53 A.2d 731. Where a latent ambiguity arises as to the identity of a legatee from the fact that no claimant exactly corresponds to the person named in the will, extrinsic evidence is admissible: Worstall's Estate, 125 Pa. Super. 133, 190 A. 162. It was stipulated that the scrivener "has no recollection of any particular instructions received with respect to the passage of the will which disposes of the remainder interest of the trust". The testimony in the record discloses nothing more than that the testatrix "was very close" to the children of Milton H. Newcomer, that Milton's children had spent considerable portions of their early lives with testatrix, and that they were on friendly terms "more so than some of them close to home".
The auditor, appointed to distribute funds in the hands of the executor, and the court below held that the sister, Mary Snyder, was entitled to the entire fund for distribution. The children of Michael Weber, nephews and nieces of the testator appealed. The bequest of the residue to be distributed among his brothers and sisters in equal shares, without naming them specifically, was a gift to a class; this well recognized rule of construction determines the testator's intention unless other language in the will shows a different intention. It has been held uniformly that where a gift is to a class the share of the one within the class designated by the testator shall not lapse by his death occurring in the period between the execution of the will and the testator's death: Harrison's Estate, 202 Pa. 331, 335, 51 A. 976; Wood's Estate, 321 Pa. 497, 500, 184 A. 13; Worstall's Estate, 125 Pa. Super. 133, 190 A. 162; McCarty's Estate, 138 Pa. Super. 415, 10 A.2d 790. Michael, having died before the execution of the will, was never a member of the class of legatees mentioned by the testator in his will. If the testator had been survived by brothers other than Leonard, and sisters, no doubt would have arisen that only those within that class at the time of the execution of the will, or the children of a deceased member of the class, who died after the execution of the will, would share in the fund for distribution; that nephews or nieces, children of a brother or sister who had died previous to the execution of the will would have had no share in it. Does the fact that the testator had but one sister and the disinherited brother at the time the will was executed warrant the changing of the rule of construction to permit the children of a deceased brother, never within the class mentioned, to receive one-half of the fund in the executor's hands? The will is written in technical language and the int
Testator `by courtesy' (Green's Appeal, supra) referred to the nephews and nieces of his deceased wife as his. And since there is a latent ambiguity the proffered testimony was admissible, dehors the codicil, to identify them as the intended beneficiaries. Worstall's Estate, 125 Pa. Super. 133, 190 A. 162; Byrne's Estate, 121 Pa. Super. 550, 184 A. 303; Brown's Estate, 343 Pa. 19, 21 A.2d 898. This conclusion, however, does not affect the result as to appellant's claim to a share in the estate. The surviving nephews and nieces of testator's wife did not appeal from the order awarding the entire residuary estate to Blanche Shuman. They alone could question the order.
This rule has been frequently reiterated, and still prevails. See Worstall's Estate, 125 Pa. Super. 133, 140, 190 A. 162, and cases therein cited. As there are children of testator who will take under the residuary clause in question, it will not become inoperative although the claims of appellants be rejected.