“During Ms lifetime, a person cannot give or dispose of property which he does not own or in which he has no interest; no more so can a person make a postmortem distribution of property, which at the time of his death he does not own or in which he has no right, legal or equitable.”
How later courts described this case
- “During Ms lifetime, a person cannot give or dispose of property which he does not own or in which he has no interest; no more so can a person make a postmortem distribution of property, which at the time of his death he does not own or in which he has no right, legal or equitable.”
- contrasting an interest in property from a mere expectancy
- general residuary clause in will “carries every interest, known or unknown, immediate or remote, unless such interest is clearly excluded”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Chief Justice Bell:
I join in Justice Roberts’s dissenting Opinion, but I am compelled' to add additional reasons.
■ The majority Opinion ■ decides for the first time in. Pennsylvania’s history (1) that any general and all-inclusive residuary paragraph in a will (a) is not a-gift of everything a testator owns or thereafter acquires • (which she has not theretofore bequeathed or devised), .-.(b) but is a gift of only the property and the property interests which, at her death, she owned or .hada legal or equitable interest therein, and (2) testatrix- died intestate as to any and all other interests which were clearly given to her or her estate.
-. A consideration of analogous principles and prior decisions and public ■ policy, and particularly the language of .the. wills here involved, will demonstrate the error and fallacy' of the majority Opinion. There is a well-settled presumption that a' person does not wish or intend to die intestate, and that a general residuary gift carries every and all kinds of property which a *583 testator owns or ever may acquire at or after Ms death—both known and unknown. Moreover, every lawyer and layman knows that a testator may lawfully and often does leave in a long testamentary trust, an ultimate gift of principal to grandchildren or issue, some or many or all of whom were unknown to the testator, and can include in such a gift property acquired long after his death which was both unknown or unanticipated. There is and should be no difference in law between those cases and this. Moreover, as Page on Wills well says (§33.50) : “Unless a contrary intention appears from the will, its effect is not limited to property in which testator lias an interest in possession, but includes property in tohich he has interests in expectancy." *
It is hornbook law that testator’s intent is the polestar in the interpretation of every will, and unless there is a violation of the law or a public policy, that intent will be sustained by the Court. That intent is to be ascertained from the language of the will. Moreover, it is the meaning of what the testator said, and not what the Court thinks he meant to say but didn’t; and it is equally well settled that technical rules or canons of construction will be resorted to only if the testator’s language is ambiguous. These tests and pertinent principles are more fully set forth in Benedum Estate, 427 Pa. 408, 412-413 , 235 A. 2d 129 , and the many decisions quoted or cited therein.
The language in the Goddard will is not merely the customary residuary gift, but is exceptionally broad and directly and explicitly applicable and controlling. Miss Mary C. Goddard, a spinster sister who survived this testatrix by nearly one year, bequeathed to her beloved sister Ruth, or her estate, her entire residuary estate: “2nd. I give, devise and bequeath to my beloved *584 sister, Ruth G. Braman, or her estate, * all of my estate, personal, real or mixed, of whatsoever nature and wheresoever situate, in fee simple absolute.”
The Majority first ignore and then nullify the clear and explicit language of the Goddard gift to Ruth “or her estate” and hold that this very broad, clear and specific gift to her or her (Ruth’s) estate is meaningless.
For these reasons, I strongly dissent.
Italics, ours.
ItaUes, ours.