Opinion
October 7, 1942.
November 23, 1942.
Wills — Construction — Intention of testator — Substitution of "or" for "and" — Gift over upon death of son unmarried and leaving no lawful issue.
1. Where testator bequeathed the income of a portion of his residuary estate to a son for life, and provided that in the event that the son married and predeceased his wife the income from one-third of the son's share should be paid to the wife during her lifetime and the income from the other two-thirds and, ultimately, the entire principal, should be paid to the son's children, and further provided that in case of the death of the son "unmarried and leaving no lawful issue", then the son's share should become part of the general residuary estate and be divided among the other children of testator, it was held that the gift over to testator's other children was effective upon the death of the son either unmarried or without issue surviving him, whether married or not. [452-3]
2. To effectuate the intention of a testator, the word "and" may be read "or." [453]
3. In gathering the meanings of words and phrases and the sense in which they are used, the context and the will as a whole must be taken into account. (452-3]
Argued October 7, 1942.
Before SCHAFFER, C. J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Appeal, No. 176, March T., 1942, from decree of O. C. Allegheny Co., 1941, No. 5949, in Estate of James Hemphill, deceased. Decree affirmed.
Audit of account of trustees. Before CHALFANT, J.
Adjudication filed confirming account and directing distribution in accordance therewith. Exceptions to adjudication dismissed, before TRIMBLE, P. J., and MITCHELL, J., opinion by TRIMBLE, P. J. Exceptant appealed.
Joseph Sharfsin, with him John Morgan Davis, for appellant.
T. F. Ryan, with him Joseph H. Bialas, of Bialas Ryan, for appellees. Elder W. Marshall, with him Edward A. Tobias and Reed, Smith, Shaw McClay, for appellees.
By his will, James Hemphill, deceased, divided his residuary estate into five equal shares, one of which he gave in trust to pay the income to his unmarried son, Horace, for life. In the event Horace married and predeceased his wife it was provided the income from one-third of Horace's share should be paid to the wife during her lifetime. The income from the other two-thirds and, ultimately, the entire principal was directed to be paid to Horace's children, him surviving, in equal shares. Testator then provided as follows: "In case of the death of my said son, Horace F. Hemphill, unmarried and leaving no lawful issue, then the said one-fifth part or share shall . . . revert to and become part of my general residuary estate, and shall, as such, be divided equally among my other sons and daughters . . ." Horace married and subsequently died, leaving to survive him his widow, Elizabeth N. Hemphill, but no issue.
At the audit of the trustee's second account, Elizabeth N. Hemphill, acting as administratrix of Horace's estate, took the position that since he had not died unmarried the gift over to the other sons and daughters could not take effect; that an intestacy resulted as to the principal of Horace's share; and that the two-thirds thereof released from the payment of income by Horace's death should be distributed under the intestate laws. The auditing judge rejected this claim on the ground that the phrase "unmarried and leaving no lawful issue" must be read as "unmarried or leaving no lawful issue" to effectuate the plain intention of the testator; this construction was sustained by the court en banc after argument on exceptions filed by appellant; and the present appeal followed.
As said in Calder's Estate, 343 Pa. 30, 34: "In gathering the meaning of words and phrases and the sense in which they are used, the context and the will as a whole must be taken into account: Smith's Petition, 291 Pa. 129, 134." So doing, we conclude, as did the court below, that testator could not have intended the gift over of Horace's share to take effect only in the event he died unmarried, but as well in the event he died without issue surviving, whether married or not; hence that the substitution of "or" for "and" was proper. "To effectuate the intention of a testator, the word 'and' may be read 'or'. Attention need not be called to the numerous authorities to sustain this. Uncertainty is sometimes the result of the improper use of 'or' for 'and', or vice versa. The general rule in such cases is that the one word will be construed to have been used for the other, where the plain intent of the testator will be defeated without such substitution . . .": Tripp's Estate (No. 1), 202 Pa. 260, 265. See also Worst v. DeHaven, 262 Pa. 39, 41; Simpson's Estate, 304 Pa. 396, 402; Whitman's Estate, 329 Pa. 377, 381.
Decree affirmed at appellant's cost.