Opinion
May 11, 1931.
June 27, 1931.
Wills — Legacies — Lapse of legacies — Gift to person "or" his heirs — Substitutionary gift — "Or" and "and."
1. A legacy or devise to a particular person "or" his heirs or to one "or" his representatives, will not lapse upon the death of the legatee or devise before the testator; the gift is substitutionary and the only question is who are entitled to take. [401-2]
2. The reason would appear to be that in a gift to A "and" his heirs, the gift is single, taking effect either at one and the same time in favor of the legatee "and his heirs," or else not taking effect at all; whereas in a gift to A "or" his heirs, the gift is in the alternative, clearly indicating both "A" and "his heirs" as objects of the gift, the "heirs" taking in the event of the nonexistence of "A." [402]
3. The word "or" may be used as if it were "and" and "and" as if it were "or" when it is absolutely necessary to carry out the expressed intent of the testator, but only in that event. [402]
4. In a bequest of personalty a widow will be considered an heir of her husband unless a contrary intent is indicated by the will. [402-3]
5. Where the word "heirs" is used in a bequest of personalty, it means heirs as ascertained by the statutes of distribution, unless a contrary intent is indicated by the will. [403]
6. Where a testator devises to his sister a life estate in property with its contents, and directs that upon her death one-fourth should go absolutely and in fee simple to her heirs at law, one-fourth in the same manner to a brother, another fourth similarly to a second sister and remaining fourth to a second brother for life, and in the event of the latter's death his one-fourth should go absolutely and in fee to the heirs at law of the first sister, one-third thereof by like language to the second brother, and one-third to the second sister, with further direction that if the first sister desired she might sell the property and its contents and distribute the proceeds among herself and the two brothers and other sister "so that each of such distributees or their heirs may receive an equal share"; in such case, when the second brother dies in the lifetime of the testator, his widow, as heir of her husband, is entitled to one-fourth of the proceeds of the property sold by the first sister in her lifetime. [400-1]
Argued May 11, 1931.
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.
Appeal, No. 48, Jan. T., 1931, by Cora S. Burg, trustee, Horton Simpson and Caroline Stuart, from declaratory judgment of O. C. Northumberland Co., Sept. T., 1929, No. 20, in Estate of John Crayke Simpson, deceased. Affirmed.
Petition for declaratory judgment. Before LLOYD, J.
The third paragraph of the will of the decedent was as follows:
"Third: I give, devise and bequeath to my sister Cora Simpson Burg, of Northumberland County, Pennsylvania, for life, the property, in Point Township, in the same county and state, known as Oak Hall, which was the former home of my grandfather Jesse C. Horton and devised to me by my aunt Mary Caroline Horton, the same to be used by her as her own home as long as she may desire to maintain it as such, together with all personal property which shall be found thereon or appurtenant thereto at the time of my death, except such of the household goods as belong to wife, Louise K. Simpson; and upon the death of the said Cora Simpson Burg, I give, devise and bequeath the said real estate and personal property as follows: one-fourth thereof absolutely and in fee simple to the heirs at law of the said Cora Simpson Burg; one-fourth thereof absolutely and in fee simple to my brother Horton Simpson; one-fourth thereof absolutely and in fee simple to my sister Caroline Stuart; and one-fourth thereof for life to my brother F. Stoddard Simpson; and, upon the death of said F. Stoddard Simpson, one-third of said one-fourth absolutely and in fee simple to the heirs at law of the said Cora Simpson Burg, and one-third thereof absolutely and in fee simple to the said Horton Simpson, and the other one-third thereof, absolutely and in fee simple to the said Caroline Simpson Stuart. Should my said sister Cora Simpson Burg, at any time after my death desire to give up said Oak Hall, and abandon it as a home, I hereby empower her to sell the same without liability on the part of any purchaser to see to the due application of the purchase money, and to distribute the proceeds derived from such sale among herself and my brothers F. Stoddard Simpson and Horton Simpson and my sister Caroline Simpson Stuart, so that each of said distributees or their heirs may receive an equal share. The personal property located in and appurtenant to said Oak Hall shall at the time of said sale be similarly distributed."
The opinion of the Supreme Court states the other facts.
Declaratory judgment entered for Edith C. Simpson, widow of F. Stoddard Simpson, deceased.
Cora S. Burg, Trustee et al., appealed.
Error assigned was declaratory judgment, quoting record.
Paul Bedford of Bedford, Jones, McGuigan Waller, with him Knight, Taggart, Klein Reich, for appellant. — The legacy to testator's brother, F. Stoddard Simpson, lapsed because of his death prior to testator's: Robinson v. Martin, 2 Yeates 525; Weishaupt v. Brehman, 5 Binney 115; Dickinson v. Purvis, 8 S. R. 71; Martindale v. Warner, 15 Pa. 471; Russell's Est., 284 Pa. 164; Lefebvre v. D'Arcy, 236 Pa. 235; Dickinson v. Lee, 4 Watts 82; Sword v. Adams, 3 Yeates 34; Campbell v. Jamison, 8 Pa. 498; Criswell's App., 41 Pa. 288; Muhlenberg's App., 103 Pa. 587; McGill's App., 61 Pa. 46; University of Penna. App., 97 Pa. 187; Barnett's App., 104 Pa. 342.
The predeceased brother's widow is not an heir: Dodge's App., 106 Pa. 216; Potter's Est., 13 Phila. 318.
William W. Mentzinger, Jr., for appellee. — There was no lapse of the legacy to F. Stoddard Simpson by his death during the testator's lifetime; on the contrary, there was a substitutional gift to the heirs of F. Stoddard Simpson: Blackburn's Est., 290 Pa. 55; Scott's Est., 301 Pa. 509.
The use of the disjunctive "or" in an immediate legacy operates to prevent a lapse, unless there is a contrary provision in the will: Ryan's Est., 2 Chester County 225; Provenchere's Est., 67 Pa. 463; Muhlenberg's App., 103 Pa. 587; Gilmor's Est., 154 Pa. 523.
Relevant authorities show that the disjunctive "or" is to be construed in its natural and ordinary meaning, and no change is to be made unless absolutely necessary to carry out the expressed intent of the testator: Worst v. DeHaven, 262 Pa. 39; Mayer's Est., 289 Pa. 407; Barnett's App., 104 Pa. 342; Gilmor's Est., 154 Pa. 523; Shoenberger's Est., 22 Pa. Dist. Ct. 126; Bender v. Bender, 226 Pa. 607; Wunder's Est., 270 Pa. 281; Barnwell's Est., 29 Pa. Dist. R. 317; Collin's Est., 29 Pa. Dist. Rep. 814.
Edith C. Simpson, widow of F. Stoddard Simpson, is an heir of her deceased husband: Ashton's Est., 134 Pa. 390; Marshall's Est., 147 Pa. 77; McClure's Est., 72 Pa. 414; Roland v. Miller, 100 Pa. 47.
By the third item of his will, which appears in full in the Reporter's notes, the decedent devised to his sister, Cora Simpson Burg, a life estate in his property known as Oak Hall, with its contents. He provided that upon her death one-fourth thereof should pass absolutely and in fee simple to her heirs at law; one-fourth in the same manner to a brother, Horton Simpson; another fourth similarly to a sister, Caroline Simpson Stuart; and the remaining fourth to his brother, F. Stoddard Simpson, for life. Upon the latter's death, he directed that one-third of his one-fourth should go absolutely and in fee simple to the heirs at law of Cora Simpson Burg, one-third thereof by like language to Horton Simpson and the other third to Caroline Simpson Stuart. He further provided that should his sister Cora Simpson Burg, at any time after his death, desire to give up the property and abandon it as a home, she was empowered to sell it and to distribute the proceeds therefrom "among herself and my brothers F. Stoddard Simpson and Horton Simpson and my sister Caroline Simpson Stuart, so that each of said distributees or their heirs may receive an equal share." He further directed that the proceeds of the personalty located in the house should be similarly distributed. F. Stoddard Simpson died in the lifetime of the testator. Cora Simpson Burg elected to sell the property and the personalty in it. The sale realized a sum in excess of $18,000. Edith C. Simpson, widow of F. Stoddard Simpson, claimed one-fourth of the proceeds of the sale as an heir of her husband. In this declaratory judgment proceeding the court below determined that she was entitled to such share of the fund. From this decision and the resulting decree in her favor, this appeal is brought.
It is the contention of the appellants that the legacy to F. Stoddard Simpson lapsed because of his death prior to that of the testator and that his heirs are not entitled to any part of the fund, and, in any event, his widow is not included within the meaning of the word "heirs" as used in the will. We can assent to the proposition that at common law where a legatee died before the testator, his legacy lapsed (Robinson v. Martin, 2 Yeates 525; Weishaupt v. Brehman, 5 Binney 115; Dickinson v. Purvis, 8 S. R. 71; Martindale v. Warner, 15 Pa. 471), and to the conclusion that under the Wills Act of June 7, 1917, P. L. 403, sec. 15 [b], a legacy to a brother is saved from lapsing only if he leaves issue, which F. Stoddard Simpson did not, but under the will before us we are not concerned with the question of lapsing, because, if we consider the will as written, the provision under which his widow claims is a substitutionary one. The gift is to F. Stoddard Simpson or his heirs. The peculiarity of the will is that whereas F. Stoddard Simpson was given but a life estate in the property if it was not sold, he was given an absolute interest in the proceeds of it should it be disposed of. It will further be noted that when the testator was devising the property as real estate, he used the term "heirs at law" of his brothers and sisters, but when he came to dispose of the proceeds in the event of sale he changed the direction to his brothers and sisters "or their heirs"; indicating that he had a different disposition in mind if the latter contingency arose.
As we have said more than once, "Precedents are of little value in the construction of wills": Scott's Est., 301 Pa. 509, 512. Recognizing this, we are nevertheless aided in construing the one before us by precedents which are in a line of some length. The rule in England is that the use of the disjunctive "or" in an immediate legacy operates to prevent a lapse: Gittings v. M'Dermott, 2 Mylne Keen's Chancery Reports 69 (1834). Judge GEST of the Orphans' Court of Philadelphia, whose learning on this branch of our law is recognized throughout the Commonwealth, in Shoenberger's Est., 22 Pa. Dist. R. 126, 128, thus sums up the authorities: "It is well settled that a legacy or devise to a particular person 'or' his heirs, or to one 'or' his representatives, will not lapse upon the death of the legatee or devisee before the testator; the gift is substitutionary and the only question is who are entitled to take. This appears to be the rule in Pennsylvania (Gilmore's Estate, 154 Pa. 523), as it is in England (Gittings v. M'Dermott, 2 Mylne Keen 69; Re Crawford's Trusts, 2 Drew 234), as well as in New York (McCormick v. Burke, 2 Dem. 137; Wright v. Church, 1 Hoffman, 202; Wetmore v. Peck, 66 How. Pr. 543), although in a bequest to a person 'and' his heirs, no substitutionary gift can be inferred: Bolles v. Bacon, 3 Dem. 43; Van Beuren v. Dash, 30 N.Y. 393; Re Wells, 113 N.Y. 396. The reason would appear to be that in a gift to A 'and' his heirs, the gift is single, taking effect either at one and the same time in favor of the legatee 'and his heirs' or else not taking effect at all; whereas, in a gift to A 'or' his heirs, the gift is in the alternative, clearly indicating both 'A' and 'his heirs' as objects of the gift, the 'heirs' taking in the event of the nonexistence of 'A.' This is held sufficient by liberality of interpretation to overcome the presumption that the words heirs, representatives, etc., following the name of the legatee, have merely their ordinary meaning as indicative of the quantity of the estate granted." We said in Worst v. DeHaven, 262 Pa. 39, that the word "or" may be read as if it were "and" and "and" as if it were "or" when it is absolutely necessary to carry out the expressed intent of the testator but only in that event. In Bender v. Bender, 226 Pa. 607, we held that the word "or" implied a substitutionary gift. Wunder's Est., 270 Pa. 281, is another instance of a substitutional gift although in that case the word "or" was not used. Gilmor's Est., 154 Pa. 523, directly rules the question before us in favor of appellee.
We are not at all concerned with the question of technical conversion because the conversion of the real estate into money was outright and actual and the fund is personalty and was so bequeathed. In a bequest of personalty a widow will be considered an heir of her husband unless a contrary intent is indicated by the will: Wunder's Est., 270 Pa. 281; Gilmor's Est., 154 Pa. 523; Eby's App., 84 Pa. 241. "Where the word 'heirs' is used in a bequest of personalty, it means heirs as ascertained by the statutes of distribution, unless a contrary intent is indicated by the will": Wunder's Est. at page 283.
The decree of the court below is affirmed at appellant's cost.