residuary clause in Pennsylvania

1969We recognize, of course, the well-settled principles that generally the purpose of a residuary clause in a will is to pass the whole estate and to avoid an intestacy and that our duty is to accomplish that purpose, if possible (Fuller’s Estate, 225 Pa. 626, 74 A. 623 (1909)) and that a general residuary clause carries every interest, known or unknown, immediate or remote, unless such interest is clearly excluded (Ingham’s Estate, 315 Pa. 293, 297 , 172 A. 662 (1934)).

1969We recognize, of course, the well-settled principles that generally the purpose of a residuary clause in a will is to pass the whole estate and to avoid an intestacy and that our duty is to accomplish that purpose, if possible (Fuller’s Estate, 225 Pa. 626, 74 A. 623 (1909)) and that a general residuary clause carries every interest, known or unknown, immediate or remote, unless such interest is clearly excluded (Ingham’s Estate, 315 Pa. 293, 297 , 172 A. 662 (1934)).

1972Whatever ambiguity exists must be resolved in accordance with the principle that a broad rather than a narrow construction of a residuary clause is favored in order to avoid intestacy, it being presumed that a testator intends to dispose of his whole estate: Fuller’s Estate, 225 Pa. 626, 629 ; Carson’s Estate, 130 Pa. Superior Ct. 133, 138 .” 335 Pa. 303 .

1957It may be at the beginning, instead of at the end of a will, and this in no way affects its character or impairs its efficiency: Fox’s Appeal, 99 Pa. 382 (1882); Appeal of Merkel, 109 Pa. 235 (1885); Bricker’s Estate, supra. Whatever ambiguity exists must be resolved in accordance with the principle that a broad rather than a narrow construction of a residuary clause is favored in order to avoid intestacy, it being presumed that a testator intends to dispose of his whole estate: Fuller’s Estate, 225 Pa. 626 (1909); Carson’s Estate, 130 Pa. Superior Ct. 133 (1938); Bricker’s Estate, supra. Sinc

1957"The same line of reasoning which appellants employ in this case with respect to a void appointment would apply equally as well to a void or lapsed bequest; yet in such a case it is clearly settled that a lapsed or void legacy does not show `a contrary intention,' but indisputably becomes a part of the residuary estate and passes under the residuary clause in the will: Carothers's Estate, 300 Pa. 185 , 150 A. 585 ; Wood's Estate, 209 Pa. 16 , 57 A. 1103 ; Bricker's Estate, 335 Pa. 300 , 6 A. 2d 905 ; Wills Act of 1917, supra, §§ 6, 11, 15(c); Hunter, Pennsylvania Orphans' Court Commonplace Boo

1957"The same line of reasoning which appellants employ in this case with respect to a void appointment would apply equally as well to a void or lapsed bequest; yet in such a case it is clearly settled that a lapsed or void legacy does not show `a contrary intention,' but indisputably becomes a part of the residuary estate and passes under the residuary clause in the will: Carothers's Estate, 300 Pa. 185 , 150 A. 585 ; Wood's Estate, 209 Pa. 16 , 57 A. 1103 ; Bricker's Estate, 335 Pa. 300 , 6 A. 2d 905 ; Wills Act of 1917, supra, §§ 6, 11, 15(c); Hunter, Pennsylvania Orphans' Court Commonplace Boo

1973See Slater Estate, 377 Pa. 285 , 105 A. 2d 59 ; also, Armstrong Estate, 347 Pa. 23 , 31 A. 2d 528 .

1962While no technical mode of expression is necessary, a residuary clause should dispose of the entire estate: Slater Estate, 377 Pa. 285 ; Armstrong Estate, 347 Pa. 23, 25 ; Haak’s Estate, 342 Pa. 93 ; Bricker’s Estate, 335 Pa. 300, 303 ; and this can present a difficult problem in construction as the above cases well illustrate.

1948In Jacob’s Estate, 140 Pa. 268 , the court held that the word “money” as used in a residuary clause was intended to include real estate.

1900Thus in Jacobs’s Estate, 140 Pa. 268 , it was held that a residuary clause in the following words, “ the remainder and residue of my money I give and bequeath to the hospital of the Protestant Episcopal Church in Philadelphia,” carried certain real estate with it to the residuary legatee, not otherwise disposed of.

1940Its operating effect is that of a residuary clause disposing of that which had not in any other portion of the will been specifically devised or bequeathed: Willard’s Estate, 68 Pa. 327”: Hoyt’s Estate, 236 Pa. 433, 441 , 84 A. 835 .

1937Shaw finds support in the decision of Mr. Justice Shabswood in Willard’s Appeal, 68 Pa. 327, 332 .

1961Since there was already pending in the Orphans’ Court a proceeding which would, achieve the same purpose as sought in a declaratory judgment, the Court in Dempsey’s Estate, 288 Pa. 458, 460 , 137 A. 170 dismissed a proceeding for declaratory judgment at the same time stating that the relief sought by declaratory judgment “could have been .obtained as speedily and effectively in the proceeding to compel an account.” In Brown’s Estate, 289 Pa. 101 , 137 A. 132 , although there was an alternative remedy, we entertained a declaratory judgment to determine whether a residuary clause in a will viola

1961Since there was already pending in the Orphans’ Court a proceeding which would, achieve the same purpose as sought in a declaratory judgment, the Court in Dempsey’s Estate, 288 Pa. 458, 460 , 137 A. 170 dismissed a proceeding for declaratory judgment at the same time stating that the relief sought by declaratory judgment “could have been .obtained as speedily and effectively in the proceeding to compel an account.” In Brown’s Estate, 289 Pa. 101 , 137 A. 132 , although there was an alternative remedy, we entertained a declaratory judgment to determine whether a residuary clause in a will viola

1949As the late Judge Penrose, of the Philadelphia Orphans’ Court-, said in WundeCs Estate, 13 District Reports 197, 198: “We have no right to assume that the absence of a residuary clause was an acci-r dent. . . .” See: DeSilver’s Estate, 142 Pa. 74 , 21 A. *5 882; Nebinger’s Estate, 185 Pa. 399, 403 , 39 A. 1049 ; Corr’s Estate, 202 Pa. 391 , 51 A. 1032 .

1949As the late Judge Penrose, of the Philadelphia Orphans’ Court-, said in WundeCs Estate, 13 District Reports 197, 198: “We have no right to assume that the absence of a residuary clause was an acci-r dent. . . .” See: DeSilver’s Estate, 142 Pa. 74 , 21 A. *5 882; Nebinger’s Estate, 185 Pa. 399, 403 , 39 A. 1049 ; Corr’s Estate, 202 Pa. 391 , 51 A. 1032 .

1952Even apart from section 6 of the Wills Act, anyone who claims that a residuary clause does not exercise a general power of appointment has a heavy burden to establish “a contrary intention.” In Thompson v. Wanamaker’s Trustee, 268 Pa. 203, 214 , 110 A. 770 , Justice (later Chief Justice) von Moschzisker said: “. . . he who, in any instance, denies that a general devise executes a general power of appointment, must prove ‘by what appears on the face of the will’ that it was testator’s ‘clearly expressed’ intention the devise in question ‘should not do so’: 1 Jarman on Wills (5th ed.) 813; Fidel

1924A similar situation existed in Huddy’s Estate, 236 Pa. 276 , wherein the donee of the power left a will which did not direct the payment of debts, gave legacies, contained a residuary clause, but no express exercise of the power.

1948Where a testator has chosen to employ a residuary clause in the disposition of his estate, such a clause is to be interpreted liberally to effect a complete disposition, if possible: Bricker’s Estate, 335 Pa. 300, 303 ; Ingham’s Estate, 315 Pa. 293, 297 ; Buechley’s Estate, 283 Pa. 107, 109 .

1948Where a testator has chosen to employ a residuary clause in the disposition of his estate, such a clause is to be interpreted liberally to effect a complete disposition, if possible: Bricker’s Estate, 335 Pa. 300, 303 ; Ingham’s Estate, 315 Pa. 293, 297 ; Buechley’s Estate, 283 Pa. 107, 109 .

1948A direction in the will of the donee to pay his debts without mention of the appointive estate, followed by a residuary clause disposing of what remains of the donee’s estate and of the appointive estate, does not bring about a blending: Valentine’s Estate, 297 Pa. 99 .

1930The Hagen case is thus explained in Valentine’s Estate, 297 Pa. 99 : “In Hagen’s Estate, 285 Pa. 326, 329 , where the testator disposed of his own possessions and of two other estates over which he had power of appointment, we, in effect, treated the absence of a testamentary provision for the payment of his debts as the equivalent of a direction to liquidate them out of decedent’s individual estate, and the fixing of that source of payment as sufficient to prevent a blending such as would make the appointed estates, — disposed of in common with testator’s own possessions, — subject to inherit

1940If he holds property in some other capacity, such as, e. g., a trustee^ or if he has the testamentary power to dispose of some other property by appointment, that other property is not a part of his “general estate.” In Hagen’s Est., 285 Pa. 326, 328 , 132 A. 175 , the phrase “general estate” was used as distinguishing a testator’s individual *584 estate from an estate from which, pursuant to his father’s will, he derived an income and over which he was given a “power of appointment.” As to the residuary clause, we think that the meaning of its contained phrase, “including all property and est

1940If he holds property in some other capacity, such as, e. g., a trustee^ or if he has the testamentary power to dispose of some other property by appointment, that other property is not a part of his “general estate.” In Hagen’s Est., 285 Pa. 326, 328 , 132 A. 175 , the phrase “general estate” was used as distinguishing a testator’s individual *584 estate from an estate from which, pursuant to his father’s will, he derived an income and over which he was given a “power of appointment.” As to the residuary clause, we think that the meaning of its contained phrase, “including all property and est

1906It is a rule of law in this state, settled by a long line of cases, that where a testator blends his real and personal estate in a residuary clause, the real estate becomes bound for the payment of legacies, the implication of the testator’s intention so to charge it arising from the fact that the residue and remainder could only be arrived at when the debts and legacies had been paid : Hassanclever v. Tucker, 2 Binney, 525; Davis’s Appeal, 83 Pa. 348 ; Sloan’s Appeal, 168 Pa. 422 .

1892Per Curiam, It is settled by abundant authority that where real and personal estate are blended in the residuary clause of a will, the legacies are a charge on the real and personal estates so blended: Gallagher’s Ap., 48 Pa. 121 ; Brisben’s Ap., 70 Id. 305; Davis’s Ap., 83 Pa. 348 .

1993Lockwood further contends, citing McCarty’s Estate, 138 Pa.Super. 415 , 10 A.2d 790 (1940), that since his brother John was deceased at the time of the drafting of the Will, his offspring must, as a matter of law, be excluded from recover *124 ing under the language of the residuary clause.

1993Lockwood further contends, citing McCarty’s Estate, 138 Pa.Super. 415 , 10 A.2d 790 (1940), that since his brother John was deceased at the time of the drafting of the Will, his offspring must, as a matter of law, be excluded from recover *124 ing under the language of the residuary clause.

1972No technical mode of expression is necessary to constitute such a clause. ‘Balance’ is the vernacular for the legal phrase ‘rest, residue and remainder’: see Thompson’s Estate, 237 Pa. 165, 169 ; Taylor’s Estate, 239 Pa. 153, 163 .

1940No technical mode of expression is necessary to constitute such a clause. 'Balance' is the vernacular for the legal phrase 'rest, residue and remainder': see Thompson's Estate , 237 Pa. 165 , 169 ; Taylor's Estate , 239 Pa. 153 , 163 .

1969The court below, although recognizing that the decision was not binding in the instant situation, referred to the following language of Mr. Justice McBride in Bigony Estate, 397 Pa. 102, 105 , 152 A. 2d 901 (1959) : “Unquestionably, if the will contained only the general residuary clause without the restrictive words ‘consisting of,’ all of the testatrix’s property, including property or funds of any kind received after or before her death under the Intestate Act from the estate of her husband [sic] would pass under this clause.” (Emphasis added) Our Court interpreted the language of the Bigon

1969The court below, although recognizing that the decision was not binding in the instant situation, referred to the following language of Mr. Justice McBride in Bigony Estate, 397 Pa. 102, 105 , 152 A. 2d 901 (1959) : “Unquestionably, if the will contained only the general residuary clause without the restrictive words ‘consisting of,’ all of the testatrix’s property, including property or funds of any kind received after or before her death under the Intestate Act from the estate of her husband [sic] would pass under this clause.” (Emphasis added) Our Court interpreted the language of the Bigon

1966Although it is the rule that where decedent was ignorant of the existence of an asset at the time of her death and where that asset differs in kind from the types of assets listed in the residuary clause, such assets will not pass under the residuary clause, but will pass as though there had been an intestacy (see Howe’s Appeal, 126 Pa. 233 (1889), and Bigony Estate, 397 Pa. 102 (1959)); nevertheless, it is equally well settled that where there is a gift of the residue of an estate followed by an enumeration of items of property intended to be included therein, such enumeration does not restri

1948Also to be distinguished is Howe’s Appeal, 126 Pa. 233 , in which the residuary clause read in part, “I do order that all my property consisting of bonds, mortgages, ground rents, stocks and personal effects in the State of Pennsylvania be sold, etc.” The court held that the itemization was definitive of the kinds of property contemplated in the residuary clause and that, especially since ground-rents were real property, all other real property was excluded.

1965At page 296 the court said: “Hence, when she employed those words at the end of her will, the natural location of a residuary clause, there can be no doubt that she meant thereby to dispose of the entire residue of her estate after the payment of her debts and the satisfaction of the legacies enumerated in the preceding clauses.” In Talbot v. Anderson, 292 Pa. 454 (1928), it was held that even real estate was included as part of the entire residue where testatrix, after making numerous specific bequests, provided that, “If there is any money left after everything is paid from my estate I would

1965At page 296 the court said: “Hence, when she employed those words at the end of her will, the natural location of a residuary clause, there can be no doubt that she meant thereby to dispose of the entire residue of her estate after the payment of her debts and the satisfaction of the legacies enumerated in the preceding clauses.” In Talbot v. Anderson, 292 Pa. 454 (1928), it was held that even real estate was included as part of the entire residue where testatrix, after making numerous specific bequests, provided that, “If there is any money left after everything is paid from my estate I would