Earle Estate

Dissenting Opinion by

Mr. Justice Allen M. Stearne:

I am unable to join in this opinion. It is an ancient well established canon of will construction that *70 where there is an immediate gift of a separate sum to each member of, a class, the class closes as of the date of death of testator. This was precisely what happened here. By the will testator erected a $100,000 trust “for the benefit of each and every male child of my sons who shall by birth inherit and bear the name of Earle.” This was followed by a gift of the residue, under which testator erected a trust, disposing of both income and principal which is to endure to the utmost limit of permissive remoteness — lives in being and twenty-one years thereafter: Warren’s Estate, 320 Pa. 112, 113 , 182 A. 396 . The beneficiaries under the residuary trust were the widow (since deceased) and each of testator’s five named children and their issue.

Now the crux of this case is this: if the $100,000 trust now claimed by the afterborn child of George H. Earle III is taken from the residuary trust, such payment diminishes the shares of income and principal not only of George H. Earle III and his four other sons, and their issue, but also of testator’s other children and their issue. In other words, the estate already given and bequeathed is necessarily cut down and diminished. To accomplish this effectively requires clear and unequivocal language: Haydon’s Estate, 334 Pa. 403 , 6 A. 2d 581 ; Harris Estate, 351 Pa. 368 , 41 A. 2d 715 ; Fink et al. v. Stein, 158 Pa. Superior Ct. 464 , 45 A. 2d 249 . It must be conceded that testator used no express language directing that afterborn grandsons of the name of Earle should have their $100,000 trust funds paid out of the residuary trust. It is only by necessary implication that such an intent may be declared. The majority in their opinion seek to demonstrate such implied intent. To attempt to analyze and answer the many points submitted in substantiation of the claim of proof of implied intent, would result in entering a labyrinth of generalities and legal principles, most of which I freely concede, but which clear *71 ly have no application to this case. The inferences of testamentary intent which are so voluminously submitted become less convincing the more they are advanced. And strange as it may seem, apparently in an effort still further to strengthen their contentions, the majority not only conjecture what testator intended but venture to suggest what counsel regarded as testator’s intent. In the opinion it is said: “In passing we note that counsel for the accountant at that audit was Mr., later, Justice Barnes, who had been testator’s personal counsel and witnessed his will. His acquiescence is somewhat indicative of the fact that afterborn children were intended to be included, otherwise he would no doubt have had a guardian or trustee ad litem appointed for that audit and the question then settled.”

In construing wills it is my opinion that there should be no straying from the solid and well defined highway of testamentary construction. We should refrain from entering the misty swamp of testamentary conjecture, following an illusory will-o’-the-wisp seeking to determine what we surmise was testator’s true intent. It is axiomatic that in expounding a will it is not what the testator may have meant, but what is the meaning of his words. This principle is analogous to a provision of the Statutory Construction Act: “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature; . . . the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.”

Judge Hunter’s adjudication and Judge Klein’s opinion in the court below comprehensively and accurately state the applicable authorities and reach the correct construction of this will. It would be unnecessarily repetitious for me to restate what they have so well said', and with which I thoroughly agree.

It is for these reasons I note my dissent.