
    England Estate
    March 11, 1963.
   The facts appear from the following extracts from the adjudication of

Klein, P. J.,

Thomas Y. England died on January 2, 1908, leaving a will by which, inter alia, he gave and bequeathed the assets described in the fifth, sixth and seventh paragraphs of his will to his executors, in trust “to pay over and distribute the dividends, interest, income and profits received or derived in any way from the moneys, stocks, or property, held by them in trust specified in paragraphs numbered 5, 6 and 7 in this will, quarterly, as follows: (a) one-third thereof to my wife Emma Clarissa England, during all the term of her natural life; (b) the residue thereof (and in the event of the death of my said wife the whole amount so received) quarterly to my three children, James William England, Martha E. Walton and Clarissa E. Landell, or the lawful issue of such of them as may be deceased, such lawful issue to receive such part or share only as his, her, or their deceased parent would have taken if living (free, clear and discharged of their debts, contracts and engagements, alienations and anticipations and of and from all liability therefor and all liens, attachments, executions, or proceedings in the nature thereof) until the death of the last survivor of my said children; Upon the death of the last survivor of my said children I order and direct my executors and trustees or their successors, or substitutes, to pay and distribute the principal of the said trust estate, equally amongst the children of my children, who shall then be living, and the issue of such of them as may be deceased, per stirpes, absolutely and in fee.” A copy of the will, certified by counsel to be a true copy, is annexed hereto.

The fund presently accounted for was awarded to the present accountants by adjudication of Gest, J., dated November 20, 1930, and the occasion of the filing of the present account was the death on April 30, 1962, of Clarissa E. Landell, last surviving cestui que trust, and the resulting termination of the trust.

It appears from the statement of proposed distribution that testator was survived by three children, Martha E. Walton, Clarissa England Landell and James W. England, of whom James W. England died on October 29, 1909, leaving to survive him two children, Margaret England and James W. England, Jr., both of whom are stated to be living and of age. Martha E. Walton died on May 28, 1937, survived by four children, Charles S. Walton, Jr., Thomas E. Walton, Martha Walton Wiedersheim and Joseph W. Walton, all of whom are stated to be living and of age. Clarissa E. Landell, the last survivor of testator’s three children, died on April 30,1962, survived by two children, Clare Landell Stevens and Paul E. Landell, and two grandchildren, Nanine Landell Mersereau and Thomas Coates Landell, children of her son, Coates E. Landell, who predeceased her. All of the children and grandchildren of the said Clarissa E. Landell also appear to be living and of age.

Under the language of the will quoted above, testator directed that, upon the death of the last survivor of his children, his trustees should “pay and distribute the principal of the said trust estate, equally amongst the children of my children, who shall then be living, and the issue of such of them as may be deceased, per stirpes, absolutely and in fee.” The auditing judge is therefore requested to determine whether distribution of the principal in remainder to testator’s surviving grandchildren should be on a per capita or per stirpes basis. If distribution is to be awarded on a per capita basis, each of the surviving grandchildren of the testator would be entitled to receive a one-ninth share of the corpus and the two children of a deceased grandchild would divide a one-ninth share, each being entitled to one-eighteenth of the corpus.

If, on the other hand, it is determined that a stirpital distribution was intended by the language quoted above, Margaret England and James W. England, Jr., children of James W. England, would each be entitled to a one-sixth share of the principal; Charles S. Walton, Jr., Joseph W. Walton, Thomas E. Walton and Martha Walton Wiedersheim, children of Martha E. Walton, would each be entitled to a one-twelfth share of the principal; Clare Landell Stevens and Paul E. Landell, surviving children of Clarissa E. Landell, would each be entitled to a one-ninth share of the principal in remainder and Nanine Landell Mersereau and Thomas Coates Landell, surviving children of Coates E. Landell, would each be entitled to one-half of one-ninth or one-eighteenth of the principal in remainder.

In the construction of testamentary writings the testator’s intention is all-important: Dinkey Estate, 403 Pa. 179, 182 (1961); Hope Estate, 398 Pa. 470 (1960); Bald Estate, 385 Pa. 176 (1956). If the language employed by testator in disposing of his estate is plain and clearly discloses his intention, the will interprets itself, and no rules of construction are necessary to aid in its interpretation: Wood v. Schoen, 216 Pa. 425 (1907). See also Wharton Appeal, 373 Pa. 360 (1953); Haydon’s Estate, 334 Pa. 403 (1939). It is a matter of common sense, as well as of law, not to attempt to construe that which needs no construction: Brown Estate, 349 Pa. 23, 26 (1944); Reck’s Appeal, 78 Pa. 432 (1875); Rzedzianowski’s Estate, 148 Pa. Superior Ct. 361 (1942).

Testator’s language in the present case falls squarely within the purview of these truisms. It is so clear, and his intent so plainly evident, that his will interprets itself, leading expressly and inescapably to the conclusion that he intended a per capita distribution of principal among grandchildren and a stirpital distribution among the issue of deceased grandchildren. Such distribution involves no conflict with the provision in the will for stirpital distribution of income to grandchildren and their issue during the continuance of the trust, i. e., during the lives of testator’s children. Until the death of his last child, testator obviously, and quite naturally, desired to preserve equality among his children in the distribution of income, as against, or in competition with succeeding or substitutionary life tenants, viz: the children and issue of deceased children. This is the time-honored, almost universal scheme of testamentary distribution of income prior to the termination of a trust. And this is the natural interpretation of testator’s language in the present case.

The contention that testator intended a stirpital distribution among the grandchildren and issue of deceased grandchildren is untenable and does violence to the language of the will.

Let us assume, however, for the sake of argument, and for this purpose only, that some doubt existed concerning testator’s intention as to whether the distribution of principal to the grandchildren was to be on a per capita or on a per stirpes basis. Even in such event we can reach no other conclusion than that testator intended the interpretation which we have adopted.

The law is well settled that where the will leaves the mode of distribution doubtful, the court will apply, by analogy, the principles of the intestate statute of distributions: Hunter’s Pennsylvania Orphans’ Court Commonplace Book, 2d Ed., Vol. 6, p. 255 et seq. See Love Estate, 362 Pa. 105 (1949); Scott’s Estate, 163 Pa. 165 (1894); Lenhart’s Estate, 344 Pa. 358 (1942). See also McDowell Estate (No. 2), 29 D. & C. 2d 469. In Sipe’s Estate, 30 Pa. Superior Ct. 145, 150 (1960), Rice, P. J., said:

“The statute of distributions governs in all cases where there is no will; and where there is one, and the testator’s intention is in doubt, the statute is a safe guide: Ashburner’s Estate, 159 Pa. 545.”

The construction we have adopted comports with the intestate laws of the state in effect when testator died.

“. . . a will must be so construed, if possible, as to give effect to every word employed by the testator and a construction which renders any of the words nugatory and futile must be rejected”: Vandergrift Estate, 406 Pa. 14, 26 (1962). See also Collins Estate, 393 Pa. 519 (1958); Hollenbaugh Estate, 402 Pa. 256 (1961). We cannot attribute to a testator an intention to write meaningless words into his will, when another construction gives such words intelligent and effective meaning: Irwin’s Estate, 304 Pa. 200 (1931). Unless no other conclusion is reasonably possible, an interpretation will not be adopted which makes any of the provisions of a will mere surplusage: Moyer’s Estate, 280 Pa. 131 (1924).

Testator directed that the principal be paid and distributed “equally amongst the children of my children, who shall then be living, and the issue of such of them as may be deceased, per stirpes, absolutely and in fee.” If we were to award a stirpital distribution we would have to disregard the use of the word “equally”. This we cannot do.

In Burleigh Estate, 405 Pa. 373 (1961), in which the testator also used the word “equally”, Mr. Chief Justice Bell said at page 379:

“. . . ‘Equally’, prima facie, means as appellants contend, a per capita distribution among the heirs. However, appellants then admit, as they logically and under the authorities must — Love Estate, 362 Pa. 105, 66 A 2d 238 — that the word ‘equally’ means equally among heirs of the same class, but the issue of a deceased member of that class would not take equally with the members of the first class, but would take per stirpes.”

In Davis’ Estate, 319 Pa. 215, 219 (1935), in which the words “divide in equal shares” were used, the court said:

. . Another circumstance pointing toward an intent that the beneficiaries take per capita is the use of the words ‘divide ... in equal shares.’ It is true, as was said in Ashburner’s Est., 159 Pa. 545, at page 547, that such words are no less appropriate to a division among classes than to a division among individuals. But, in the absence of other language disclosing an intention to distribute stirpitally, the words ‘equally to be divided/ ‘divided into equal parts/ and the like, ordinarily favor distribution per capita rather than per stirpes: See Bender’s App., 3 Grant 210; Hiestand v. Meyer, 150 Pa. 501; Garnier v. Garnier, supra; Brundage’s Est., 36 Pa. Superior Ct. 211.”

If a stirpital distribution were adopted, the grandchildren, i. e., “the children of my children”, would not all receive equal shares. On the contrary, the two surviving children of testator’s son, James, would each receive twice as much principal as would their four cousins, who are the children of testator’s daughter, Martha, and 50 percent more than each of the children of testator’s daughter, Clarissa. It would require far more persuasive arguments than have been advanced in support of stirpital distribution in this case to convince the auditing judge that when testator directed payment of the principal in remainder “equally amongst the children of my children” (all of whom were born in his lifetime, before the execution of his will, and were living at his death), he contemplated such an unequal result.

In paragraph 4 of the will, testator indicated that he knew how to make a clear, unequivocal stirpital gift. He created a trust, the income to be paid to his sister, Mary E. Murphy, for the term of her natural life, and upon her death to pay the principal “to and amongst the children of my said sister, Mary E. Murphy, or the issue of such of them as may be deceased, per stirpes, absolutely and in fee.” The word “equally” was not used in making this gift. This is most significant. The change in the phraseology of the later gift to the grandchildren is strong evidence of a different intent: Davis’ Estate, 319 Pa. 215 (1935); Reiff v. Pepo, 290 Pa. 508 (1927); Martin v. Grinage, 289 Pa. 473 (1927); Elliott v. Diamond Coal & Coke Company, 230 Pa. 423 (1911).

The testamentary plan in the present case is an entirely natural one. Ordinarily a person has the same degree of affection and love, as a class, for all of his children and grandchildren. Preference for one member of the class is the exception rather than the rule, and to be effective in a will, must be clearly expressed.

In Rosengarten Estate, 349 Pa. 32 (1944), the court said at page 37:

“. . . It is not unusual for a parent to give income to his children for life until the death of his last surviving child, and then to give the corpus to his grandchildren. Under such a testamentary plan, a gift to grandchildren as a class, of necessity, means a per capita distribution. A study of the philosophy underlying this principle will disclose that when a testator makes a gift to a group of individuals of the same class, he is not mentally dividing them stirpitally, and increasing or decreasing their shares depending upon the fecundity of their parent. He is thinking of each member of the class as an individual. Thus a gift to grandchildren, nephews, cousins, etc., as a class, connotes an equal share to each individual of the class, i. e.: per capita.”

The same general concept was stated in a different way in Esbenshade’s Estate, 23 Dist. R. 1069 (1914):

“. . . Manifestly the testatrix had nephews and nieces in her mind as the objects of her benefaction, and because they were her nephews and nieces not by reason of them being the children of brothers and sisters. It was their relation to her which guided her purpose. Her affection was not fractionally divided among them. It was not seven times as strong for the only child of one sister as it was for each of seven children of another sister. It was full for each . . .”

In the present case, all nine of Thomas Y. England’s grandchildren were born in his lifetime, before the execution of his will, and were alive when he died in 1906. Nothing is contained in his will which remotely suggests that he favored any one of his grandchildren over the others. On the contrary, the plain language of the will clearly reveals that he regarded them alike, as the objects of his bounty, and that he wished them to share “equally” in his estate if they were alive when his last surviving child died.

The parties who argue for a stirpital distribution rely principally upon Wanamaker Estate, 399 Pa. 274 (1960), in which the lower court directed a per capita distribution of principal, but was reversed on appeal by a divided Supreme Court. We cannot accept this case as a precedent, or as binding authority, as Chief Justice Bell, who wrote the majority opinion said at page 283:

“However, we agree with the auditing Judge that this will is sui generis, and that no prior decision of this Court governs it. It is therefore unnecessary to analyze or review the authorities cited by appellant or appellee . . .”

Moreover, we regard Marshall Estate, 377 Pa. 41 (1954), and Corr’s Estate, 338 Pa. 337 (1940), as in-apposite and readily distinguishable from the instant case. We do not regard the fact that the words per stirpes were underlined, nor the punctuation used in the paragraph under construction, as material or significant in view of testator’s clear and unambiguous directions. . . .

And now, March 11, 1963, the account is confirmed nisi.

Opinion Sur Exceptions

Saylor, J.,

April 26,1963.

The sole question before us is this:

“Where, upon termination of a trust, testator directs distribution of principal “equally amongst the children of my children, who shall then be living, and the issue of such of them as may be deceased, per stirpes, absolutely and in fee”, is the distribution to the grandchildren per capita or per stirpes?

In his carefully considered and clearly stated adjudication, President Judge Klein decided that a per capita distribution was directed. This resulted in an award of one-ninth of the trust corpus to each of eight surviving grandchildren and of one-eighteenth to each of the two surviving children of a deceased grandchild. The two children of a previously deceased child of testator who had been receiving between them the income from one-third of the corpus, or one-sixth each, being under the adjudication limited to only one-ninth of principal, have filed exceptions to the adjudication claiming that under the language used by testator he intended distribution by the stirps of his three children.

Counsel ably supported their respective contentions pro and con by well prepared and comprehensive briefs and thorough oral argument. The learned auditing judge gave full consideration to the same arguments and to the cases cited when the matter was before him. Little need be added to the language he employed in interpreting the provisions of the will and in reaching his decision.

It seems clear that in directing distribution of principal “equally amongst the children of my children” testator meant that each of his grandchildren living at the time of distribution was to receive an equal share of principal and that if any grandchild was not living at such time the share he would have received, had he survived, was to be divided equally among his issue.

The exceptants cannot sustain as valid any argument that “children of my children” are other than grandchildren of testator whether the latter term be employed or not employed. The distribution commanded takes two courses if any grandchild is not living at distribution. Two situations are provided for. The first situation is that the grandchildren living at distribution occupy one category. Each member of such category receives an equal share of that portion of principal set aside for that category. The second situation is that the issue of grandchildren who are not living at distribution occupy another category. The issue of any deceased grandchild in such category are to receive the parent’s share of the principal remaining for that category, per stirpes.

The use of words and punctuation in the clause of the will under consideration effects such result. The words “per stirpes” were intended to provide for distribution among those occupying the second category. These words cannot reasonably be considered as relating back to the beginning of the dispositive clause because so to relate them would be to ignore the word “equally” appearing at the very beginning of the clause. Both “equally” and “per stirpes” must be accorded full consideration. If “per stirpes” be applied to “children of my children”, it would be redundant to use the word “equally”. The stirpes would be equal but not the distribution if the word “equally” were ignored. There can be no equal per stirpes distribution where testator’s children have an unequal number of children as here. The words “per stirpes” can apply only as above stated.

Moreover, the fact that in paragraph 4 of the will testator uses identical language for the distribution of principal held in trust for his sister is indicative of his intent in using the words “per stirpes”. There he provided that on the sister’s death the trust principal was to pass “to and amongst the children of my said sister, Mary E. Murphy, or the issue of such of them as may be deceased, per stirpes, absolutely and in fee.” There being but one parent here concerned the words “per stirpes” could apply only to the issue of such of that parent’s children who had predeceased her. The words were not intended to and could not apply to her children who survived her.

The fact that both in paragraph 4 and in paragraph 9 of the will testator underscored the words per stirpes has no significance. It is no more than a recognition that they have a legal meaning. They are Latin, not English. The underscoring cannot and does not affect their applicability to the language preceding them.

The intention of testator is clear if all of his language is fully considered as it surely must be. There is no doubt that he called for a per capita distribution of principal to the members of the class of grandchildren with the sole qualification that the issue of any not living at distribution were to receive their respective parent’s shares per stirpes.

Were there any doubt, and the language before us does not raise one, the distribution, as the learned auditing judge has said, would be made in exactly the manner in which he directed it, the distribution in such case being in accordance with intestate law.

The exceptions are dismissed and the adjudication is confirmed absolutely.  