Harris Estate

Dissenting Opinion by

Mr. Justice Allen M. Stearne:

I am in complete disagreement with this decision.

Testator, by his will and codicil, in plain and unambiguous language, bequeathed to his widow a share in his estate as measured by the Pennsylvania Intestate Act of June 7, 1917, P. L. 429, 20 PS section 1. The majority reject this interpretation. They

create

a supposed ambiguity in the language of the codicil where none exists. They then

reform

the testamentary disposition. An

implied

intent is attributed to testator to disinherit his widow, with an added supposed expression of knowledge on his part that his widow could elect to take against the will. Finally they deny permission to the guardian of the widow, a mental incompetent, to elect to take against the will and receive her intestate share. The entire estate is passed to testator’s two brothers, next of kin, to the exclusion of the widow. Such an extraordinary construction and such approval of the exercise of judicial discretion have no sound basis for support.

Testator was a citizen of the Commonwealth of Pennsylvania, domiciled in Switzerland. He was survived by his widow, who resides in Switzerland, and by two brothers, who reside in America, his only heirs and next of kin. Both the will and codicil were executed in Switzerland.

Before analyzing the

words

of these testamentary writings, it is necessary to consider the surrounding circumstances under which they were executed. The Swiss law of succession must be compared with the Pennsylvania Wills and Intestate Acts. It was established by expert legal testimony that in Switzerland an estate of a person domiciled therein passes

by law,

irrespective of testamentary direction, to “issue, parents,

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or brothers or sisters or a spouse” in prescribed shares. These are known as “compulsory portions”. While the record is silent as to

amount

of such shares, it was testified “. . . the law which designates the heirs also determines the distributive shares of such heirs .'and also the manner in Avhich such shares shall be calculated.” It was also proved that if testamentary dispositions impinge upon the statutory shares of'the spouse, issue or next of kin, all excesses must be abated.

In Pennsylvania, under the Wills Act of June 7, 1917, P. L. 403, 20 PS section 181, there exists no legal requirements for obligatory shares to the surviving spouse, heirs or next of kin. A testator may disinherit any or all of such individuals. However, a surviving spouse is given the personal right, under Section 23 of the Wills Act, to

elect

to take against the will and thereupon is “. . . entitled to such interests in the real and personal estate of the deceased spouse as he or she would have been entitléd to had the testator died intestate.”

It was also proved that under the law of Switzerland, an alien domiciled in that country (the status of testator) may

“subject Ms succession to the substantive law of Ms country of origin.”

The will is dated November 20, 1940, and the codicil February 3,1941. The will was written by hand in English and is probably holographic. The codicil was Avritten in French by a Swiss notary. The language employed in the codicil reflects the notary’s familiarity Avith Swiss law and terminology, but exhibits his lack of knoAvledge respecting legal terms and phrases in. the Pennsylvania Wills and Intestate Acts. We are therefore required to construe, as one testamentary disposition, a will written in English, with distribution under

Swiss law>,

and a codicil to the will, written in French, designed to. distribute the estate under

Pennsylvania law.

We have repeatedly decided that in expounding a will, the

intent

of the testator is the polar star:

Woelp

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per’s Appeal,

126 Pa. 562 , 17 A. 870 ;

Scott’s Estate,

313 Pa. 155 , 169 A. 73 ;

Sarver’s Estate,

324 Pa. 349 , 188 A. 141 ;

Prime’s Petition,

335 Pa. 218 , 6 A. 2d 530 . Also, that the question is not what the testator meant but what is the meaning of his words:

Weidman’s Appeal, 2

Walker 359;

Ludwick’s Estate,

269 Pa. 365 , 112 A. 543 ;

Loughran’s Estate,

144 Pa. Superior Ct. 88 , 18 A. 2d 676 : The question is confined to the meaning of what testator has said, and does not extend to the consideration of what he might have said, but did not:

Nebinger’s Estate,

185 Pa. 399 , 39 A. 1049 . A will construction is never to assume the proportions of reformation:

DeSilver’s Estate,

142 Pa. 74 , 21 A. 882 ;

Jacobs’ Estate,

343 Pa. 387 , 22 A. 2d 744 . While a judge is required to put himself in testator’s place to determine intent, the meaning must be ascertained

from the language used,

and not some other possible but undisclosed purpose:

Yate’s Estate,

281 Pa. 178 , 126 A. 254 ;

Conner’s Estate,

346 Pa. 271 , 29 A. 2d 514 . Conjecture is not permitted to supply what testator has failed to indicate:

Jacobs’ Estate,

supra. There is a fundamental distinction between the

nature

of a codicil and that of a later will. A later will works a

revocation,

while a codicil is a

confirmation,

except as to such alterations which it may contain:

Sigel’s Estate (No. 1),

213 Pa. 14 , 62 A. 175 ;

Warne’s Estate,

302 Pa. 386 , 153 A. 688 ;

Wright’s Estate,

68 Pa. Superior Ct. 177 . As the purpose of a codicil ordinarily is to modify or add to, and not revoke, it is only permitted to change the will to the extent that it is inconsistent with it:

Whelen’s Estate,

175 Pa. 23 , 34 A. 329 ;

Schattenberg’s Estate,

269 Pa. 90 , 112 A. 67 ;

Chauncey’s Estate,

335 Pa. 73 , 5 A. 2d 795 . A will and codicil must be construed together as one instrument:

Thomas’ Estate,

241 Pa. 290 , 88 A. 499 ;

Dutton’s Estate,

301 Pa. 94 , 151 A. 697 ;

Moore Estate,

347 Pa. 276 , 32 A. 2d 12 ;

Jones Estate,

151 Pa. Superior Ct. 396 , 30 A. 2d 241 .

With these principles as a guide, the

will

must first be construed to ascertain what interest testator intended

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to pass to Ms widow. The

codicil

must then be examined to determine in what manner and to what extent its language affected the widow’s interest already bequeathed to her by the

will.

Both testamentary writings must be construed together.

The probated will bequeathes to named individuals legacies totalling 375,000 Swiss francs, said to be the equivalent of about $90,000. It names an executor

but makes no disposition of the residuary estate.

Because of the absence of a residuary clause, my learned brothers of the majority note in their opinion that the will contains “no reference to his wife”, thereby inferring that the testator intentionally or accidently ignored her. But it is to be observed that neither did the will refer to testator’s brothers. There is an obvious reason for this omission. There was no occasion to refer in the will to the “compulsory shares” payable

by law

to the widow and the brothers, as next of Mn. The Swiss statutes had already provided for this.

Such disposition was fixed by law and even the testator could not change it.

For the same reason, the statement in the majority opinion that the codicil disposed “of the residue of his estate not disposed of in the will . . .” is not accurate. It is apparent that testator’s omission to dispose of his residuary estate was not the accidental omission or failure to forecast events which so frequently appears in wills in which a share remains undisposed of. The present omission was the

deliberate

act of testator. Judge Penrose, of the Philadelphia Orphans’ Court, wrote in

Wunder’s Estate,

13 Dist. Reports 197, 198: “We have no right to assume that the absence of a residuary clause was an accident”. See

DeSilver’s

Estate, 142 Pa. 74 , 21 A. 882 ;

Nebinger’s Estate,

185 Pa. 399, 403 , 39 A. 1049 ;

Corr’s Estate,

202 Pa. 391 , 51 A. 1032 . Compare also

Rose v. Quick,

30 Pa. 225 ;

Pepper’s Estate,

148 Pa. 5 , 23 A. 1039 ;

Will of Louisa Rorer,

7 Phila. Reports 524. By necessary implication, testator incorporated the terms of the Swiss statute in his will. Had he died after the execution of the

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will, but before tbe execution of bis codicil, tbe legacies of 375,000 Swiss francs would have been paid, and tbe Swiss compulsory shares would have passed to tbe widow and tbe brothers.

An exemplified copy of tbe probated codicil, written in French as above indicated, with tbe English translation, is on file in tbe office of tbe Register of Wills of Philadelphia. Its dispositive words read:“....

The law of my country of origin will alone

....

be applicable to my succession. . . . Unless I have otherwise disposed my whole succession is to go entirely to my relatives in the United States of America, it being understood that my wife shall receive the compulsory portion as provided by law in proportion as the successional law of my country prescribes. . . . This is the expression of my formal wishes.”

According to tbe Swiss expert, testator, by this language, effectively accomplished bis purpose to distribute bis estate according to tbe laws of tbe Commonwealth of Pennsylvania instead of under tbe statutes of Switzerland.

As I construe tbe words of tbe codicil, what testator intended to do primarily was to take bis estate out from tbe operation of tbe Swiss law and to substitute tbe provisions of tbe

Pennsylvania Intestate Act.

He first

conditioned

bis testamentary dispositions by tbe words: “Unless I have otherwise disposed. . .

.”

This referred to tbe bequests of 375,000 francs in bis will. Testator says bis

whole succession

is to go entirely to bis relatives in tbe United States of America. But be makes another

condition

to that bequest, viz.: “. . .

it being understood that my wife shall receive the compulsory portion as provided by law . ... in proportion as the successional law of my country prescribes. . .

.” Even though written in French, by a Swiss notary, employing terms not ordinarily found in a Pennsylvania legal vocabulary, testator expressed bis intent with remarkable clarity. In

Heckman’s Estate,

299 Pa. 369 , 149 A. 646 , tbe entire es

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tate was bequeathed to children,

“subject to dower for my wife .”

We held that such words were equivalent to an absolute bequest to the wife. See also:

Carrell's Es

tate, 264 Pa. 140 , 107 A. 664 ;

Morris’s Estate

298 Pa. 25 , 147 A. 840 ;

Erie’s Estate,

311 Pa. 185 , 166 A. 656 . As testator substituted Pennsylvania law for Swiss law, I can attribute no other meaning to his words than a plain and unequivocal gift, of a Pennsylvania intestate share of the residue to his widow. This construction coincides with the unanimous opinion of the six judges of the Orphans’ Court of Philadelphia County. Had this view been adopted, all further considerations would have been moot.

The majority reject this construction. They decide an ambiguity exists in the language, which enables them to declare testator’s

presumed

intent.

Before examining the assigned reasons for the existence of an ambiguity, it should be borne in mind that, after all, it is

only an ambiguity

which is asserted. The codicil does not, in terms, disinherit the widow. Testator by his codicil substituted the law of Pennsylvania for that of Switzerland. By his will testator passed to his widow a statutory share

under the Swiss law.

To take away from the widow her commensurate share, as measured by the substituted Pennsylvania Intestate Act, .requires more than a

supposed ambiguity.

It cannot be done by inference or surmise. Plainly expressed, unequivocal terms are required. The correct statement of the law, which is applicable by analogy, is found in the majority’s opinion: “The rule is that a testator may by words, standing alone, give an absolute estate and then, by subsequent words, may cut down that absolute estate,

but such a reduction in quantum may be made only by words clearly and unambiguously requiring that result”

(italics mine).

As I view the majority’s construction, they have

created

an ambiguity where none exists, and have then attributed to testator a

supposed intent

in actual hostility

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with his plainly expressed intent. See:

Bruckman’s Estate,

195 Pa. 363, 370 , 45 A. 1078 . When testator said “The law of my country of origin will alone ... he Applicable to my succession” and “my wife shall receive, the

compulsory, portion

as provided by law in proportion as the successional law of . my country prescribes”, it is difficult for me to comprehend how the testator’s-dis-positive intent in its relation to a natural and primary object of his bounty can possibly be misunderstood.

In an effort to demonstrate the existence, of ah ambiguity, the majority minutely dissect the testamentary words and phrases, compare translations, and Aven parse French verbs. They have discussed the meaning of ^dis-positive portions” under the Swiss Civil- Code. No one disputes the accuracy of what has' been thus writteh. But all of these considerations, taken singly or collectively, do not change to the slightest degree testator’s express and unequivocal words that his widow

C(shall receive the compulsory portion as provided by law. in proportion as the successional law of my coimtry prescribes.”

■ . - '■

An attempt is made to create an ambiguity because of the Use of the words “compulsory portion”. There appears to be but slight difference between: the Pennsylvania and Swiss statutes. The Pennsylvania

Intestate Act

prescribes the measure of the intestate shares. These are obligatory and may not be increased or diminished. Under the

Wills Act,

a surviving spouse may elect to take her intestate share in lieu of the share provided for her by the will.- In Switzerland, however, -the statutory share passes to the widow regardless of testacy or intestacy. It seems most clear that this testator realized that under Pennsylvania law his widow could always demand her intestate rights and therefore regarded such share as “compulsory”. Regarding the will as a whole, any distinction in-terms appears most narrow. It certainly does not support the assertion of ambiguity.

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I. am unable to comprehend the involved reasoning of the majority, whereby the testamentary words are construed to

imply

testator’s intent to give his wife

nothing

and at the same time to indicate his supposed knowledge that his widow could elect to take against the will. There is nothing in these writings which even remotely suggests such an idea. The majority seat themselves in testator’s mythical “arm chair” to seek out the surrounding facts and circumstances under which the writings were executed as an aid to their interpretation. After considering the extent of testator’s estate, his family, the wills of his grandfather and mother, taxes, income and many other matters, there is attributed to this sick, aged testator “pinched with the messengers of death”, supposed intent relating to matters which, I am positive, from their very statement, testator never considered, or of which he was even capable of remotely comprehending. Indeed, concerning testator’s supposed knowledge of the

tax

situation, contrary to what appears in the opinion, counsel for the next of kin frankly concedes in his supplemental brief “. . .

it would be unreasonable to assume that

[testator]

had in mind the correct solution of all these difficult tax problems.”

Having decided that testator disinherited his widow and indicated that he was aware that his widow could elect to take against the will, the majority reach a conclusion which disinherits the widow,

but prevents her from electing to take against the will.

They approve the action of the majority of the common pleas court in refusing the guardian of the widow the right to make such election. To my mind the action of the common pleas court was a flagrant abuse of judicial discretion. The law has long since emerged from the ancient conception that a married woman was a chattel and could be dismissed by the formality of handing her a slipper. The marriage relation vests in the wife a statutory interest in her husband’s real and personal property. Her property rights, once acquired, have always been pro

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tected and defended by the courts. In early times a widow even possessed the “right of quarantine”, a right secured to her by Magna Charta, Cap. 7, which permitted her to tarry in the chief house of her husband for forty days until her dower rights were assigned to her Co. Litt. 32b, 34b. A mentally competent widow may freely elect to take against her deceased spouse’s will. It is a personal decision, not subject to judicial supervision. But widows frequently acquiesce in the terms of their husband’s wills, even though they could have received larger portions under the intestate laws. It is this underlying consideration which is the basis of the requirement that a legal representative of a

mentally incompetent

widow must secure the court’s permission to elect in her behalf. I agree with the majority and the cases they cite in support of this principle. It is well stated by Judge Htjntek in his Pennsylvania Orphans’ Court Commonplace Book, Vol. 1, page 354: “The right of a committee in lunacy to take against a will is not absolute but is within the sound discretion of the court having control of the lunatic’s estate; the leaning of the law is in favor of the will, particularly where a taking against it would divert the estate of the deceased from his own blood; where the individual estate of the lunatic and that bequeathed to her are ample for her needs, leave to elect to take against the will will be denied.”

It is to be observed that this statement couples with the sufficiency of the individual estate of the wife the requirement:

“and that bequeathed to her".

In every case cited by the majority the testator had, by his will,

made adequate provision

for his widow in a measure almost equivalent to her statutory intestate share. In none of the cases was the widow disinherited. But in no reported case which I have discovered, has this principle been applied to allow a widow to be disinherited because she possessed an individual estate of her own, was old, insane and therefore would not be able to enjoy it. Such considerations are, to my mind, wholly unsound and untenable.

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An illustration of .the

application

of this principle may be shown in the facts of this case. Suppose this Court had construed the will to pass 375,000 francs to legatees and an intestate share in the residue to the incompetent widow. A valid election to take against the will would entitle.the widow to receive:such interest as ■she would have taken had her husband died intestate. Thus, she would take a

full

one-half. The 375j000 francs legacies would-then be payable out of the other intestate share. See cases cited in Judge OHuntee’s-Commonplace Book, supra, Yol. 1, section 12, page 355, et seq. It is highly probable that with an. estate of this size, where testator by his will had amply provided for his wife, the court, would refuse permission to the guardian of the incompetent'widow to elect.to take against the will, for the sole purpose of increasing the widow’s estate to the extent of one-half of the amount of the legacies,-a gain in dollars, of even as much' as $45,000.

. In the facts of this case, I most emphatically do not agree that-it is for the

“welfare of the widow, the main object of . . . consideration”,

that she should be denied her intestate share; The assigned reasons-for the exercise of the discretion by the -common pleas court denying the guardian the right to elect are in.two classes: (1) what the widow will receive from the , testator’s grandfather’s will in case she is disinherited, and (2) what it will-cost her in taxes, if she rejects-the -will (as interpreted) and takes her intestate share.

It is not at all clear to me precisely how many American dollars this ■ widow will 'receive from the grandfather’s trust.if.it is held, as the majority do, that-testator did not “provide” for his widow.- It is true that the" stipulation states that the widow, in such event, is to receive “one-hálf the income” which the testator enjoyed in his lifetime, said to be $60,00.0 per annum. This, of course, would be $30,000. But-it'is also stated that there will be a probable -federal estate tax of $940,300 payable. Counsel for the widow contends that such fed

*403

eral tax will considerably reduce that income,, which is denied by the counsel for the next of kin. In any event, what, if anything, the widow will receive is a matter of serious question.

It was argued with great earnestness by counsel for the brothers that if the widow received her intestate share she would be required to pay federal estate taxes which would consume all her income for the next few years and as the vested, remainder would not fall in until 21 years after the decease of a named living person, she would be without income from her husband’s estate for such period and hence, probably for the remainder of her life. Counsel for the widow argues. to the contrary. ■ Elaborate briefs have been submitted, with highly technical tax calculations. It is apparent that the federal tax question is subject to a wide divergence of opinions. I do not think this Court should essay to pass upon such federal tax matters. Realizing the extremely complicated state of the tax law and tax regulations, I would prefer to allow the responsibility of deciding what was best for the widow to rest with her capable representatives and not be influenced by the arguments of the next of kin who will receive the whole estate to her exclusion.

After much reflection I have formed the opinion that what my learned brothers are really attempting is a

reformation

of a will rather than its

construction.

They have been persuaded that it is desirable to keep this large fortune within the confines of the United States, where it was created, and in the blood of the founder of the fortune. They brush away the rights of the widow because she is seventy-six years of age, insane, and with a life expectancy, at best, of few years; because her wants, relatively small, are sufficiently supplied by her own estate and by her husband’s relatives; and because her income might be augmented, in an uncertain amount, if her husband disinherits her. If such

reformation

can be accomplished, the estate is preserved in America and

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little harm, the majority consider, is done to the widow. They have accordingly constructed a Procrustean bed out of sound and seasoned legal principles. This is wholly improper. In a will construction the sole inquiry should be to ascertain the true intent of the testator and to enforce the disposition unless unlawful. The testamentary disposition need not coincide with the construing judge’s idea of equity and propriety.

This will should not be reformed. The plain and unambiguous gift of an intestate share to the widow should be upheld. To tear down plain, testamentary words and in their stead to erect a top-heavy structure of

supposed

intention, and to refuse permission to the widow to receive her statutory share, is contrary to every established principle of will construction.

I would affirm the definitive decree and declaratory judgment of the orphans’ court, and dismiss the order of the common pleas as moot.

Mr. Justice Drew and Mr. Justice Jones concur in this opinion.