# Vandergrift Estate > Supreme Court of Pennsylvania · January 2, 1962 · 406 Pa. 14 URL: https://www.frixlaw.com/law-library/cases/9751971 ## Case - **Full name:** Vandergrift Estate - **Court:** Supreme Court of Pennsylvania - **Decided:** January 2, 1962 - **Citations:** 406 Pa. 14; 177 A.2d 432; 1962 Pa. LEXIS 643 - **Precedential status:** Published - **Opinion:** Concurring in part by Bell - **Judges:** Bell-, Bell, Musmanno, Jones, Cohen, Eagen, Alpern - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751971 ## Opinion text Concurring-And Dissenting Opinion by Mb.- Chief Justíce Bell-: We -have'-repeatedly- said-that' a Court has'no right to rewrite a^ testator’s will. It is not what wé think téstát'óí should' have said, dr" whaf we think he would have-: said if hé had foreseen the present situation, or even what the'Court thinks he meant to say — it is what iS the meaning of his words: Althouse Estate, 404 Pa. 412 , 172 A. 2d 146 ; Cannistra Estate, 384 Pa. 605 , 121 A. 2d 157 ; Sowers Estate, 383 Pa. 566 , 119 A. 2d 60 ; Britt Estate, 369 Pa. 450 , 87 A. 2d 243 . Barely will one find a testamentary trust whose dispositive provisions are a:s minutely and aptly drawn. *42 For example, in Article XI, which relevantly is the most important provision, testator gave the net income from one equal fifth part of his residuary trust estate to (each Of his five named children which included) Maggie for life and then specifically provided that upon her death the (l/5th of the) principal shall be paid to Maggie’s child or children living at her death, and the issue, if any, Of any of her deceased child or children. He then clearly and specifically provided that (1) if any of his said sons or daughters, i.e., Maggie, shall die leaving but one child to survive her and no issue of a deceased child, then such child shall receive the whole one-fifth of the principal; (2) if * Maggie shall die leaving more than one child to survive her, but no issue of a deceased child, then the said one-fifth shall be divided equally between said surviving children, share and share alike; (3) if* Maggie shall die leaving a child or children, and the issue of a deceased child or children surviving her, then the said One-fifth shall be divided equally among such surviving child or children and the issue of a deceased child or children, the issue of a deceased child counting as one in said division and taking the share his, her or their parent would have taken if living. Just try to substitute the word “other” for the word “surviving”, as the majority opinion advocates, and the result is a conglomeration of meaningless language. Then there follows the gift which gives rise to the present appeal. Testator provided: “If any of my said sons or daughters [Maggie] die either before or after my . decease without leaving any child or any issue ** of a deceased child surviving him or her [as occurred in this case], then, the income from said share shall be paid to his or her surviving brothers and sisters [there were none] for and during the natural life of each *43 surviving brother and sister [there were hone] and, upon the death of any one of said surviving brothers and sisters [there were none], the share of the principal of the said trust funds or estates to be paid over to the children and issue of children of such deceased surviving brother or sister shall he proportionally increased, that is to say, if any of my said sons or daughters shall so die without leaving any child, or any issue of a deceased child to survive him of her, then the share of the income to he paid to each of my surviving sons and daughters shall he increased to one-fourth, and the said share of the principal of said trust funds or estates to be paid over upon the death of any one of such surviving sons, or daughters, to his or her children, and issue of deceased children shall be increased to one-fourth and so on.” How can we interpret the word “surviving” in this gift to mean “other” when in this and in every other part of his will testator clearly meant “surviving” when he said “surviving”, and “then living” when he meant “then living”, and “to survive him or her” when he meant “to survive him or her.” Testator used the word “survive” several times, and he used the word “surviving” ten times, and in each instance he clearly and accurately demonstrated that he knew and meant what he said, viz: “survive” meant “survive”, and “surviving” meant “surviving” — it didn’t mean “other”, or anything except “surviving”. The one contingency which, testator did not foresee and provide for happened, namely, the death of his last surviving child, Maggie, without leaving a child or issue, or even a brother or sister surviving her. To interpret the word “surviving” as “other” is impose sible, unless we ignore of distort his clear language and rewrite his will. The majority opinion, ignoring the clear and apt language of Vandergrift’s will, gives this trust prin *44 cipal not to the--living'but to grandchildren'and great grandchildren.-who survive not Maggie, but testator’s-sons, or;daughters-respectively even though--they are dead at;Maggie’s,death.-,.The-Court--bases.-its interpre-. tation- and 5 conclusion: on.-the scheme .of testator’s- will.The-scheme-pf'-testatpr’s-will-.does not rebut but on-the. contrary confirms his clear and- apt.language.- A care-, ful examination- of.- testator’s minutely .drawn will quickly discloses--that..upon-the.-death of eaclmof his. Children, as well .as-upon tlie-happening of-a particular-event, he. gavehis income or principal (as the case may be)-not. to the; dead-.but to the- then living, i -The majority invoke the presumption- against' intestacy, but. there is another presumption of equal force and effect,namely; the presumption that an heir is not to be disinherited except- by:plain words or necessary-implication; "and'When'both can apply they offset each other: Conlin Estate, 388 Pa. 48 -3, 492, 131 A. 2d 117 ; Beisgen Estate, 387 Pa. 425 , 128 A. 2d 52 ; Bigony Estate, 397 Pa. 102 , 152 A. 2d 901 : The truth of'the matter is, ■ irrespective of the aforesaid presumptions,, that nearly everyone abhors an intestacy and conscious-' ly or unconsciously seeks to avoid'it, and this is espe-' dally true where'as here testator ■ undoubtedly wished tb ¿dispose by'■ will of ‘his -entire estate.' But' similar cases freqüéntly arise where" this Court has held that' an' intestacy exists' even though- testator -unquestionably intended to dispose by will'of his entire estate. Many examples ebuld-ber- given, but one or two simple ones will suffice.': A husband with no issue leaves- all-Ms-property- to-his wife, his wife'predeceases-.him; .a' widow leaves everything to her child-or children, they predecease her without leaving-issue ; or a testator-intending to bequeath and-devise his entire estate creates a residuary estate which violates the rule againstperpetuities,' .Or gives his residuary: estate to -charity within 39 days. of -his • death. We cannot, just in - order; *45 ,to avoid an intestacy, ignore the clear apt language of Vandergrift’s will and distort “surviving” to Meán “other5’ when he many times'clearly showed'that-'-was not- his meaning or intent. This :i A especially so: when distorting his language would result in disinheriting some of his heirs.- ' • • :.... Considering the plain and -unambiguous language of bis entire will, it is clear that in the situation which has arisen testator failed to dispose of this one-fifth ■Share of' his residuary trust estate and consequently as to this share he died intestate and the principal, goes to his next of kin under the intestate law’s.' With respect to (a) the'counsel fee and (b) the trustee’s .commission and (e)' the claim off the trustee in bankruptcy, I agree with the majority opinion. Any of Ms said sons or daughters, i.e. Italics throughout, ours. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751971. Public record. Not legal advice.