Swope Estate
Swope Estate
Dissenting Opinion
In this crudely written holographic will the “pivotal” word is, in my opinion, incorrectly read by the majority as “stieial”; there is, of course, no such word and the testator certainly did not intend to write a meaningless one. The word is “special,”
I therefore dissent.
The letters are not “ti” but a single letter “p”; the only omission in the word is the letter “c”, but many of the words in the will omit one or more letters.
Opinion of the Court
Opinion by
This appeal concerns the construction of a holographic will, a photographic copy of which is as follows :
There is little which we can profitably add to the opinion of the learned court below. In expounding a will, it is not what the testator may have meant, but Avhat is the meaning of his words. It does not extend to a consideration of what testator might have said, but did not say: Weidman’s Appeal, 2 Walker 359; Estate of Andrew Nebinger, 185 Pa. 399, 39 A. 1049; Ludwick’s Estate, 269 Pa. 365, 112 A. 543; Rosengarten Estate, 349 Pa. 32, 36 A. 2d 310; Myers Estate, 351 Pa. 472, 41 A. 2d 570; Leopold Estate, 356 Pa. 543, 52 A. 2d 458; Berger Estate, 360 Pa. 366, 61 A. 2d 855; Burpee Estate, 367 Pa. 329, 80 A. 2d 721; Britt Estate, 369 Pa. 450, 454, 87 A. 2d 243. A comprehensive statement of this principle is made by Mr. Justice Jones in Farmers Trust Company v. Wilson, 361 Pa. 43, 46, 63 A. 2d 14: “In Weidman’s Appeal, 2 Walker 359, 361, 42 Leg. Int. 338 (1885), Mr. Justice Trtjnkey quoted with approval for this court to the effect that ‘The
In Morrison Will, 361 Pa. 419, 65 A. 2d 384, these principles were again restated. The case of Eaton v. Brown, 193 U. S. 411, was there cited, p. 421, in which Justice Oliver Wendell Holmes said “The English Courts are especially and wisely careful not to substitute a lively imagination. . . .” In Rouse Estate, 369 Pa. 568, 87 A. 2d 281, where the suggestion was made in the court below that there might have been an accidental omission or oversight, we said (p. 573) : “We do not subscribe to the conjecture of the court in banc that The balance of express language as to the event which occurred was an oversight of the scrivener.’ If there were an omission, such omission might not be remedied by judicial construction. In Grothe’s Estate, supra, Justice Mestrezat said, p. 192: . . if it was an oversight, the courts have no authority to insert a provision . . . under the assumption that it was the intention of the testator. It is only when the lan
We do not agree with appellant that by eliminating consideration of the unintelligible word and the word “bequeath”, it is plain that the remaining words: “I here by name my Nepew Donald Swope exectutor and ... the sum of $5.000 .. .” indicate a legacy to the nephew. There are no dispositive words. Testator may ■have so meant, but the words he employed do not so state. It is equally arguable that the words “I here by . . . bequeath the sum of $5.000 and balance of my estate To [the sons] . . .” is a devise and bequest to the sons. True, testator did not need to mention $5,000 if he intended to pass it with his residue. But this fact alone is not controlling. This Court will decline to surmise testator’s intent by resorting to speculation or conjecture. The sons, the heirs of testator, are the natural objects of testator’s bounty. Where the usual, natural, just and legal course of distribution is to be changed, it must be done by words reasonably free from ambiguity: Weber’s Appeal, 17 Pa. 474; Hirsh’s Trust Estate, 334 Pa. 172, 177, 5 A. 2d 160.
The decree is affirmed. Costs to be paid from the estate.
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