Turner Estate
Turner Estate
Opinion of the Court
Opinion by
A narrow issue is presented: whether testatrix’ holographic will revoked by implication the provisions of an earlier will of testatrix?
L. May Turner (testatrix), an 87 year old Altoona resident, died on June 28, 1959. Testatrix, a spinster, left three wills in physical existence: (1) a lawyer-prepared will dated January 29, 1958 (herein called first will) to which there was a codicil dated August 20, 1958; (2) a will drawn by testatrix dated June 25, 1959 (herein called second will); (3) a holographic will dated June 26, 1959 (herein called third will). The third will was probated by the Register of Wills of Blair County on July 1, 1959. Three and one-half months later Mary P. Turner (appellee)
At the outset the respective contentions of the parties should be clarified. Testatrix’ estate, valued at approximately $69,000, was composed of household and personal effects inventoried at approximately $500, cash (or its equivalent) approximating $14,500 and securities inventoried at approximately $54,000. Concededla, the third will effected a testamentary disposition of the household and personal effects and cash. The instant controversy involves only the disposition of testatrix’ securities.
In testatrix’ second will, her “stocks and other investments” were given to appellee and James W. Turner (appellant).
For the purpose of this appeal, certain facts may be considered as conceded or not seriously disputed: (a) all three wills are valid and genuine wills; (b) testatrix made the interlineations and alterations which appear in the second will; (c) at all times testatrix possessed testamentary capacity; (d) testatrix was very fond of James L. Turner, James W. Turner and their wives; (e) the first will, changing the provisions of previous wills, was occasioned by reason of the death of James L. Turner in 1957; (f) testatrix’ very close friend and legatee in previous wills, a Miss E. K. Eyre, died and her death triggered the preparation of the second will; (g) testatrix was a very intelligent woman who knew and understood the difference between cash, securities and other specie of property.
Bearing in mind this background we examine the pertinent provisions of all three wills and the circumstances which surrounded the execution of each will.
Attorney C. M. Kurtz, testatrix’ lawyer for approximately twenty years, drew the first will for testatrix on January 29, 1958. James L. Turner having recently died, testatrix explained to Attorney Kurtz that she wanted his “share” of the estate to be given to Mary Turner, his widow. This first will, containing an ex
Miss Eyre died on May 29, 1959 and on June 8, 1959, at testatrix’ request, Attorney Kurtz visited testatrix. Testatrix indicated that, due to Miss Eyre’s death, she Avanted to change her will but she was too weak at the time to discuss the contemplated changes and she gave the original of the first will and codicil thereto to Attorney Kurtz requesting that he keep them until she was able to make the contemplated changes. On June 23 and June 24 Attorney Kurtz visited testatrix but again she was too weak to discuss the contemplated changes and, on the latter occasion, testatrix was informed by Attorney Kurtz that he would be out of town for several days but would see her again on June 30.
On June 25, 1959, testatrix decided to make her own changes in the will. For that purpose she utilized an
The next day testatrix drew the third or holographic will on three sheets of ruled paper. On this instrument the date “June 26,-59” appears on the upper right-hand corner of the first page and below, in the top middle of the page, “My last will and testament”. This will provides the place of testatrix’ burial, that her debts be paid, that the expenses of maintaining her apartment for three months be paid to appellant and that
Testatrix had told Mrs. Bishop, one of the subscribing witnesses, that her will could be found in a dresser drawer in her bedroom and, after testatrix’ death, there was found in this dresser drawer an envelope sealed
The narrow issue which we must determine is whether the third will of testatrix has revoked, in whole or in part, the provisions of the second will. Revocation of an earlier will by a later will may be by express or implied revocation (Wills Act of 1947, Act of April 24, 1947, P. L. 89, § §5, 6; 20 P.S. §§180.5, 180.6). In the case at bar, there is no express revocation: if the third will revokes the second will, in whole or in part, such revocation must be by implication. In Gray Will, 365 Pa. 411, 416, 76 A. 2d 169, this Court stated: “. . . the declaration of revocation need not be express, it may, under the authorities, be by necessary implication. An earlier will can be revoked by a later will or other writing . . . which disposes of an estate in an entirely different manner than the earlier will and is inconsistent therewith.” See also, Kehr Will, 373 Pa. 473, 95 A. 2d 647. “If the dispositive provisions of the later will are inconsistent with the dispositive provisions of the earlier will, the later will revokes the earlier will just so far as it is inconsistent with it and no farther”: 2 Bowe-Parker, Page on Wills, §21.43, p. 412. See also: Price v. Maxwell, 28 Pa. 23, 38; Gensimore’s Estate, 246 Pa. 216, 92 A. 134; McClure’s Estate, 309 Pa. 370, 165 A. 24; Hartman’s Estate (No. 1), 320 Pa. 321, 182 A. 234; Burtt Will, 353 Pa. 217, 44 A. 2d 670.
In determining whether the third will is inconsistent with the second will to the extent that the provisions of the latter are revoked we must look to the dispositive scheme of both instruments and from the language employed by testatrix in the third will ascertain her intent.
Second Will Third Will
1 Direction that debts and funeral expenses be paid 1 Direction that “all debts” oe paid
2 Direction tnat burial be in Alto Rest Cemetery 2 Same
3 Gift of $300 to 1st National Bank of Altoona for care of parents’ burial plot 3 Same
4 “All the cash of which I die possessed or entitled, after the payment of my just debts
(a) $2000 to nephew, J. P. Turner (a) same
(b) $2000 to niece, Louise Turner (b) same
(c) $2000 to niece, Marjorie M. Parker (c) same
(d) $2000 to nephew, H. W. Turner (d) to Mrs. H. W. Turner
(e) No provision (e) To Lucy Turner, $100
5 “All the remaining cash* of which I die possessed or entitled” to James W. Turner, Mary P. Turner and Elizabeth K. Eyre 8 No similar provision
6 “All the stocks and other investments of which I die possessed or entitled” to Mary P. Turner and James W. Turner 6 No similar provision
7 Executors named • — ■ Attorney Kurtz and James W. Turner 7 Executors named ■— 1st National Bank of Altoona and Attorney Kurtz
9 No similar provision 9 “All money
10 No similar provision 10 All jewelry and handpainted china — with the exception of handpainted chocolate set given to Mrs. H. W. Turner —to Mary P. Turner to be divided among her children
11 No similar provision 11 Direction that “the inheritance tax on all my bequests be paid by my said estate”
12 No similar provision 12 “The balance of my money* to be given to” James W. Turner
From an analysis of both wills certain facts become evident: (1) the third will completely disposes of testatrix’ household furnishings and personal effects; (2) the third will provides $8100 is to be paid out in pecuniary legacies without designating the source from which such legacies are to be paid;
Dehors the third will, the record is clear that testatrix knew the amount of cash available to meet the requirements of her will; as an intelligent woman handling her own affairs she knew her checking account had a balance of slightly in excess of $4700 and, having visited her safety deposit box only three weeks before the time she made the third will, it is logical to assume she knew she had slightly in excess of $8,500 in that box, or a total of $13,000 in cash or available cash. Over and above such cash she had assets the equivalent of cash amounting to approximately $1,500.
She knew, because she so provided in her third will, that her debts and funeral expenses and death taxes would have to be paid. As an intelligent woman she also knew that administration expenses, such as execu
It would appear that the total cash, or its equivalent, available for payment of debts, funeral expenses, perpetual care of the burial plot, death taxes, administration expenses and the pecuniary legacies would be approximately $14,500. The result is that, if appellee is correct in her contention that the specific gift of the securities in the second will stands unrevoked and the securities are unavailable to share in the payment of these expenses, taxes and legacies, each legatee will receive approximately 34% of the amount given to him by testatrix. While such a result per se does not dictate a construction of revocation by implication, it is a factor to be considered in ascertaining testatrix’ intent under the instant circumstances. It is clear from the four corners of testatrix’ will that she not only wanted her debts, taxes and expenses paid but that she wanted her pecuniary legacies paid in full without any diminution and that her cash on hand was not to be the sole source for the payment of such legacies.
In our view, the dispositive scheme of the third will clearly contraindicates the position of appellee and the court below. Appellant well urges: “ [Testatrix] must have intended all of [the pecuniary legacies] to be paid at par;
In the third will testatrix states: “The balance of my money to be given to Mr. James W. Turner . . .” (Emphasis supplied). Does money in the sense used by testatrix mean “cash” or does it mean “property” or “estate” — if the latter, then this language clearly revokes, by reason of inconsistency, the gift of securities contained in the second will.
In Smith v. Davis, 1 Grant 158, Mr. Justice Woodward, speaking for this Court, said: “On such a question, adjudged cases are of no value farther than to show, what the authorities abundantly prove, that the word money in a will, may be construed to mean cash, or may stand for the whole personal estate, as the intention of the testator, deduced from every part of the will, may seem to require. It is to be received in its restricted and proper sense, or in its more enlarged signification, as it will best effectuate the general intention of the testator; and because wills differ more than men’s faces, it can rarely happen that the construction given to this word in one will, shall help us any in interpreting its meaning in another. ” (pp. 158-9) “Money” has received in our decisions various constructions. The sound rule would appear to be that
In Conlin Estate, supra, pp. 493, 494, Mr. Justice (now Chief Justice) Bell, speaking for this Court, noted that our decisions wherein “money” was interpreted in a broad sense involved situations: (a) where “the gift of the rest or remainder or balance of ‘my
It may be urged that the result reached is inequitable in view of the fact that testatrix was very fond of Mary P. Turner and, under our interpretation, Mary P. Turner is deprived of a share in a division of testatrix’s securities. As this Court stated in Conlin Estate, supra, pp. 488, 489: “[Appellee] mistakenly believe [s] that by placing himself in the armchair of the testatrix, a Judge can thereafter distribute the testatrix’s estate in accordance with good morals and equity among her relatives and friends as a reasonable man seeking to be fair would do. Of course, that is not and never has been the law. ... It is not what a Judge, if he had been sitting in [testatrix’s] armchair, and moralizing, thinks that the testatrix should in equity and in good conscience have done . . . .” The language of this will and the circumstances surrounding its preparation command the result we have reached. No other result is consonant with testatrix’ intent evidenced by the language of this will.
The rationale of the court below by which it reached the conclusion that testatrix did not by implication revoke the second will’s provision as to “stocks and other investments” is set forth at length in its opinion.
In the second place, the court below noted that at the time of her death testatrix had $13,314.03 in cash assets,
Furthermore, the court stressed the absence of an express clause of revocation in the third will as indicative of a lack of intent to revoke the provisions of the second will. In our view, the absence of such an express clause of revocation is of little significance when one considers the third will in its entirety. The court also pointed out that in the sealed envelope which was marked “My will 1959” were included not only the third will but also the altered copy of the first will and concluded that “the inclusion of both documents therein was solely the act of the testatrix and that her purpose in so doing was that the rest of her property— namely her stocks and investments — undisposed of by the holographic instrument should pass in accordance with the provisions of the altered carbon copy.” In appellant’s brief this conclusion of the court is com
Under the construction placed on the third will by appellee and the court below 90% of testatrix’ estate would pass under the second will and 10% under the third will; under appellant’s construction the bulk of the estate would pass to James W. Turner’s estate to the practical exclusion of appellee. Bearing in mind that testatrix was equally fond of both James W. Turner and Mary P. Turner, the widow of James Lisle Turner, it is urged that testatrix could not have intended to prefer the former to the latter. We cannot know with any certainty why testatrix made such preference although it is evident she did. The record indicates that, when the third will was executed, both James W. Turner and his wife, living with the testatrix, were in such a state of health as to be termed “invalids” by testatrix. Concern for their care after testatrix’ death might have prompted making the third will. Regardless of the reason it is evident that testatrix intended to make James W. Turner the principal object of her bounty.
In our view, the language of the third will viewed in its entirety, the dispositive plan portrayed therein and the circumstances which surrounded the execution of this third will clearly indicate that it was the intent
Decree reversed. Costs on estate.
Mary P. Turner is the widow of James Lisle Turner, a nephew of testatrix who predeceased her. Admittedly, testatrix was very fond of both James Lisle Turner and Mary P. Turner.
When appellee originally appealed from the probate of the third will she averred that the third will did not revoke the first will or its codicil and asked that the first will and its codicil be probated with the third will. At the hearing appellee sought to amend her petition to request probate of the second, rather than the first, will and the court below properly permitted such amendment.
Jamos W. Turner, a nephew of testatrix, survived testatrix but died during the pendency of this proceeding. His interest is represented by -Ada K,. Turner, his widow and administratrix. For the sake of convenience, we refer to both James W. Turner and Ada R. Turner as appellant.
“it is not what the Court thinks [she] might or would have said in the existing circumstances, or even what the Court thinks [she] meant to say, but what is the meaning of IherJ words. [citing cases]": Britt Estate, 369 Pa. 450, 455, 87 A. 2d 243; Canistra Estate, 384 Pa. 605, 607, 121 A. 2d 157.
The share of Miss Eyre was to be held in trust to pay the income to her during her lifetime and, upon her death, to he divided egually between appellant and appellee.
That list included appellant’s daughter-in-law rather than his son as in the second will.
Emphasis supplied.
Emphasis supplied.
Cf: the provision in the second wiU provides for payment of $8000 in pecuniary legacies from “cash” after payment of debts, i.e., the source from which the legacies are to be paid.
James Turner and Ms wife, both in very poor health, had lived with testatrix since Miss Eyre’s death. Thirteen days before she died, testatrix wrote appellee: “Poor Jim [James W. Turner] is suffering terribly with his leg .... Ada [James W. Turner’s wife] can do very little, really is not able to do anything .... Just three invalids together .... It is a problem no one can solve but God----”
Death, taxes are $8600 and administration expenses $8800.
A contrary view would also render meaningless the gift of the proceeds from the sale of the household furnishings to appellant.
In this connection the language of the second and third wills must be contrasted. Instead of establishing her “cash” as the source of payment of the legacies as she did in the second will, testatrix in the third will, provided: “I give to each person named below, two thousand dollars”.
For cases construing “money” in a narrow sense, see: Levy’s Estate, 161 Pa. 180, 28 A. 1068; Watson v. Martin, 228 Pa. 248, 77 A. 450; Clabby’s Estate, 338 Pa. 305, 12 A. 2d 71; McKown’s Estate, 263 Pa. 258, 106 A. 301; Dickson v. Com. Trust Co., 361 Pa 612, 65 A. 2d 408.
In the safe deposit box was $8,586.55 and in the checking account $4,727.48.
Dissenting Opinion
Dissenting Opinion by
Mr. Justice Jones has ably stated the law and clearly set forth the facts, as well as the narrow question involved. I regret I must differ with him in the inferences and conclusions which he has drawn therefrom.
Justice Jones holds that the word “money” in the residuary bequest in Miss Turner’s third will meant and included not only “money”, but also “stocks and other investments”. Testatrix drew and signed her second will and the next day drew and signed her third will, and two days later died. Although testatrix was an invalid, it was agreed, (a) that she had testamentary capacity, and (b) that she was fond of all the legatees, and (c) that at all times testatrix was a very intelligent woman who knew the difference between cash and stocks and other investments.
The most difficult problem in connection with wills is the interpretation of a holographic will, and this will is no exception. My reasons for believing that the third will repealed, by implication, only those parts of the second will which are inconsistent with the second, are as follows: Testatrix demonstrated that she knew the difference between cash or money, on the one hand, and stocks or investments, on the other hand, in her first and second wills, and this knowledge is admitted by the parties. In her second will she changed the equal division of her stocks and other investments from three persons to two persons, because of the recent
In her third will, testatrix not only failed to revoke her second will, which she had drawn and signed the day before,, but far more importantly, she put the second and third wills in a sealed envelope which she marked “My will 1959”. To me her intent from this act is clear — (1) she wished and intended both wills, the second and third wills, to be her last will and testament, and (.2) the third will was not intended to com
I would therefore hold that both the second will and the third will should be admitted to probate and construed as above set forth.
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