Moltrup Estate

¶1Dissenting Opinion by

¶2The most important issue on this appeal is whether, within the four corners of this will, a testamentary intent is evidenced, either expressly or by implication, which precludes the application of an established rule of testamentary construction.1

¶3*175This rule of testamentary construction may be thus stated: where there is a testamentary gift of personalty to a person for life, with the express power given to the life tenant to consume such personalty, followed by a gift over, on the death of the life tenant, of the unconsumed portion of such personalty, the relationship of the life tenant to the remainderman is that of debtor to creditor to the extent of the value of the personalty when distributed to the life tenant. See: Hays Estate, 358 Pa. 38, 55 A. 2d 763 (1947) ; Powell’s Estate, 340 Pa. 404, 17 A. 2d 391 (1941).2 3***Such rule is one of construction, not of law.3

¶4In Gramm Estate, 420 Pa. 510, 515, 516, 218 A. 2d 342 (1966), we said: “In this Commonwealth, limitations over after a gift of a life estate in personalty were early recognized, even without the intervention of a trustee, ‘though it was always held that the life tenant was entitled to the possession of the thing so bequeathed, and this right carried with it the power to make his possession valuable, according to circumstances.’ See also: Eichelberger v. Barnetz, 17 S. & R. 293, 294 (1828); Kinnard v. Kinnard, 5 Watts 108, 110 (1836); Holman’s Appeal, 24 Pa. 174, 178, 179 (1854); Bregy, Intestate, Wills and Estates Acts of 1947, pp. 5954 et seq.

¶5“By the enactment of legislation . . . security was required to be given by the life tenant of personalty for the protection of the remainderman. The case law which developed considered the relationship between *176the life tenant and the remainderman where personalty was given for limited period and with a gift over, without the intervention of or the creation of a trust, to be that of debtor and creditor; the life tenant became a debtor to the remainderman in the amount originally received by the life tenant and the remainderman became a creditor of the life tenant or his estate for the value of the personalty when received. Up until 1931 (Strawbridge’s Estate, 14 Pa. D. & C. 703), the decisions all involved situations where the courts were determining the relationship between the life tenant and remainderman where the former had entered security or where the entry of security was expressly waived either by the provisions of the will or by agreement of the parties. However, in Strawbridge’s Estate, supra, where the court was confronted with a situation where the life tenant had neither entered nor been excused from entering security, the late Judge Gest ruled that the rights of the life tenant and the remainderman were the same whether security was entered or not. See also: Gillett’s Estate, 130 Pa. Superior Ct. 309, 318-321.

¶6“Finally, in Powell’s Estate, 340 Pa. 404, 409-412, 17 A. 2d 391, this Court, reaffirming the existence of a debtor-creditor relationship between the life tenant and remainderman of personalty, held (a) the life tenant was responsible only for the value of the estate at the date of distribution and not for any increase of the value of the fund thereafter, (b) even though a life tenant posts no security, the life tenant remains a debtor to and not a trustee for the remainderman and (c) legislation requiring a life tenant of personalty to post security did not apply to a life tenant to whom had been given the power of consumption of principal.”

¶7The thrust of our inquiry should be whether, within the four corners of this will, a testamentary intent, express or implied, can be demonstrated that the debtor-creditor relationship be not applied in the interpreta*177tion of this will. If such intent can be shown, then the rule of construction must yield; otherwise, the rule of construction controls. I am of the opinion, from an examination of this will, that such testamentary intent is not present, either expressly or by implication.

¶8In seeking to ascertain the intent of a testator we examine the will, its language, its scheme of distribution and the attendant circumstances: Houston Estate, 414 Pa. 579, 586, 201 A. 2d 592, 595, 598 (1964). The intent we seek is the “actual, personal, individual intent” and not “a mere presumptive conventional intent inferred from the use of a set phrase or a familiar form of words”: Tyson’s Estate, supra, p. 225. The majority opinion correctly says that “a testator’s intent is the polestar in interpreting a will”; however, such statement carries no magic. “To say that the intention of the testator is the pole star of construction, is merely to formulate the trouble without giving a remedy for it. The intention is to be sought primarily in the words, as the pole star in the sky, but sometimes the pole star is so obscured in the clouds of words that it takes a skillful astronomer to see it.” Gest, Drawing Wills and the Settlement of Estates in Pennsylvania, at p. 5. In seeking to discover the presence or absence of such intent, we must be zealous to avoid substituting our own view of what the testator should have intended for that which the will reveals, if it does, as to testator’s actual intent.

¶9The majority opinion concludes that this will does reveal an intent on the part of the testator which precludes application of the established rule of testamentary construction, i.e., a testamentary intent that the debtor-creditor theory should not apply. In my view, the stated premises upon which the majority opinion predicates its conclusion lack basis in fact and in our case law.

¶10*178First, the majority opinion states: “In the clearest language testator expressed his intent that this unconsumed4 residuary estate should go (after the death of his wife Mary) to his son Merle or Merle’s surviving lawful heirs [the remaindermen]; in other words, to the testator’s son or his surviving lawful heirs and not to Mary [testator’s wife] or her heirs or relatives or her testamentary appointees. . . .” What the majority says, in effect, is that, since testator clearly provided that the gift over be to his son and the son’s legal heirs, i.e. blood relatives,5 6then testator must have intended that the debtor-creditor relationship should not apply. The majority opinion errs, in my view, because the instant factual posture presents a classic posture for application of the debtor-creditor rule. Moreover, the majority further falls into error in equating “blood relatives” with “legal heirs”: Leopold Estate, 356 Pa. 543, 546, 52 A. 2d 458 (1947). This premise, I submit, is a weak reed upon which to rest a finding of contrary intent.

¶11*179Second, as evidence of testator’s intent, the majority opinion states “It is equally clear that testator did not give Mary a fee or even a general power of appointment. . .”. As criteria of a contrary intent, this premise is obviously untenable. Had testator given his wife a fee or a general power of appointment, then clearly the debtor-creditor theory would not apply. This rule of construction never applies where a fee or general power of appointment has been given but only where the first taker is given personalty for life, with or without the power of consumption.6

¶12Lastly, as indicia of a contrary intent, the majority opinion points to the absence of any provision for or the specific expression of an intent to create a debtor-creditor relationship. Assuming arguendo, the majority opinion is correct in its statement that until the decision in Powell’s Estate_, supra, the gift of a life estate in personalty with the power to consume was not considered to create a debtor-creditor relationship— a statement with which I completely disagree—then, since the instant testator did not include in his will a provision for the establishment of the debtor-creditor relationship, the majority concludes testator did not intend that such relationship be established. Reliance on this premise reveals a misunderstanding of the rule of construction. Our research does not reveal a single instance in our case law where the debtor-creditor relationship was recognized because of provision therefor in the testamentary instrument; were it otherwise, there would be no necessity for the application of the rule of construction.

¶13The real key to the thinking of the majority opinion is that when distribution was made in 1942 to the life *180tenant the personalty had a value of $52,132.36,7 whereas the value of such personalty when the life tenant died was $173,658.88. The majority thinking is that to give the remainderman this entire amount produces the result which the supposed intent of the testator dictates. The majority opinion would hold the life tenant’s estate responsible not only for the value of the personalty when distribution was made to the life tenant but also for that value plus the increase in value up to the time of her death. Such a result could not possibly be reached under the rule of testamentary construction; to avoid such rule the majority of this Court finds what it considers a testamentary intent but what in reality is a supposed or invented intent. To me the majority opinion finds intent where none exists and completely fails to demonstrate the source or sources in the will upon which a finding of such intent can be rationally bottomed. Unfortunately, in my view, the decision of the majority is a striking example of judicial interference in order to reach a result which it considers desirable.

¶14Even if the majority opinion was correct in its statement that a testamentary gift of a life estate in personalty with a given power of consumption followed by a limitation over of the unconsumed portion did not give rise to a debtor-creditor relationship until the enunciation of such rule by this Court in 1941 in Powell’s Estate, supra, the fact remains that this Court since then, on at least two occasions, has recognized the applicability of this rule of testamentary construction to “the life tenant with power of consumption” situation. See: Hays Estate, 358 Pa. 38, 55 A. 2d 763 (1947) and Lyman Estate, 366 Pa. 164, 76 A. 2d 633 (1950). We have always held that when a judicial *181decision is rendered the law is not presumed to be changed by it but to have been the same before as after such decision. See: Hood v. Penna. Society, etc., 221 Pa. 474, 479, 70 A. 845 (1908).

¶15For many, many years this Court has recognized that, where a testator bequeathes personalty for life to one person, with a limitation over of the “residue”, “the remaining part” or words of like import but without a grant to the Ufe tenant of any right to consume, the life tenant vis-a-vis the remainderman occupies the status of a debtor: Markley’s Estate, 132 Pa. 352, 19 A. 138 (1890); Heppenstall’s Estate, 144 Pa. 259, 22 A. 860(1891); Hambright’s Appeal, 2 Grant 320 (1855); Gold’s Estate, 133 Pa. 495, 19 A. 485 (1890); Welsh’s Estate, 239 Pa. 616, 86 A. 1091 (1913). Moreover, we have held that a life tenant, without power to consume was entitled to any accretions in the value of the personalty during his lifetime (Letterle’s Estate, 248 Pa. 95, 93 A. 935(1915); Kirkpatrick’s Estate, 284 Pa. 583, 131 A. 361 (1925) and was responsible for any depreciation or loss in value (Gillett’s Estate, 130 Pa. Superior Ct. 309, 197 A. 517 (1938); Strawbridge’s Estate, 14 Pa. D. & C. 703 (1931)).8

¶16Up until the Estates Act of 1947, supra, the law was clear that a life tenant without power of consumption was a debtor to the remainderman and responsible to the remainderman only for the value of the estate ascertained at the time he received it. When considering the situation of a life tenant with the power of consumption why should a more stringent rule be adopted? When a testator gives personalty to a person for life and then confers upon the life tenant the power to consume the personalty, certainly the *182testator has given the life tenant almost absolute dominion over the disposal of the personalty. Powell, in applying the debtor-creditor relationship to a “life tenant with power to consume” situation, actually restricted the right of the life tenant in that Powell held the life tenant responsible for maintenance of the value of the personalty even though under the will the life tenant had the right to consume all the personalty; by making the life tenant responsible for maintenance of the distributed value, the court withdrew from the power to consume the right to consume such amount of personalty as might reduce that value. It does not seem logical to hold a life tenant with power to consume to the same restrictions imposed on a life tenant without power to consume. Particularly is this so when in the case at bar the majority of this Court now denies to this life tenant’s estate the right to the increase in the value of the personalty whereas in our case law a life tenant without the power to consume has always been held to have the right to such increases in value.

¶17It is clear beyond question the majority opinion relies solely on Lyman Estate, supra, which avoided the rule of Powell and Hays by finding a supposed intent of the testator to the contrary. In my view, Lyman is incorrect.9Lyman, by finding what it supposed to be a contrary intent, not only ignored the rulings in Powell and Hays but also those in Letterle, Kirkpatrick, Gillett and Strawbridge.

¶18Generally, courts will not interfere with the first taker’s control of the personalty unless the remainder-*183man makes out a strong case requiring interference: Gramm Estate, supra, p. 518 and authorities therein cited. However, as we said in Tyson’s Estate, supra, pp. 226, 227: “But a transfer [by the life tenant] with intent not to consume herself, but to preserve for others after her death, and to change the beneficiaries after her from those chosen by her husband to others of her own selection would be a fraud on the testator and his will. . . .” Under the terms of the instant will the power of consumption of principal and income by the life tenant was certainly not to be without restriction: her consumption was intended to be in good faith and her diversion of the personalty to others was not contemplated.

¶19If we examine this will it is crystal clear that, upon the life tenant’s death, if any portion of the personalty remained unconsumed, such personalty, under the scheme of the will, was to go to the remainderman and his legal heirs. What the life tenant attempted to do was to divert such personalty to persons other than the remainderman and his heirs. She was thus thwarting the clear intent of this testator10 and upon this ground the instant result might be justified. The majority do not even consider this ground.

¶20I believe that the life tenant was a debtor to the remainderman to the extent of the value of the personalty distributed to her. I further believe that, insofar as the value of such personalty is concerned, any attempt by the life tenant to divert personalty to others than the remainderman cannot be countenanced. However, as to the increase in value of such personalty, I believe our case law mandates that such increase belongs to the estate of the life tenant.

¶21*184The majority of this Court now overrules Powell and Hays under the guise of finding in this will a testamentary intent, an intent the basis of which the majority opinion fails to reveal. We hear much of the doctrine of stare decisis; in no area is such doctrine more important than in the construction of wills which involve valuable property rights. If the majority of this Court believe that Powell and Hays are incorrect, courageously Powell and Hays should be held no longer authoritative. What the majority opinion does, however, is to avoid following Powell and Hays by the use of a fiction of a supposed testamentary intent. To do so renders meaningless the doctrine of stare decisis.

¶22I could reach the same result at which the majority arrives by finding that the life tenant was attempting to divert to persons other than the son and his heirs the value of the personalty when distributed to her. However, I believe that the enhancement in value of the personalty belongs to the estate of the life tenant and not to the estate of the remainderman.

¶23The second and last issue raised by the estate of the life tenant is whether the distribution to the life tenant is subject to challenge 22 years later. I would permit such challenge but on grounds other than the majority allows such challenge. My study of this record indicates that the remainderman did not receive notice of the proposed distribution in 1942; on that ground I would permit an attack on the distribution.

¶24I would reverse the decree of the court below.