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Attorney(S)

Gilbert E. Long, for appellant. Alvah M. Shumaker, with him Armand R. Cingolani, for appellee.

Judges

OPINION BY MR. JUSTICE ALLEN M. STEARNE, April 11, 1949:

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Smart Summary

Morrison Will — Summary of Opinion (Supreme Court of Pennsylvania, April 11, 1949)

Factual and Procedural Background

This appeal arises from an orphans' court decree sustaining an appeal from the probate of a holographic will on the ground that the will was conditional and the condition had failed. The instrument, dated November 29, 1919, consisted of the handwritten words: "Nov 29 Dear Frank if I never se you again I wont you to have everything I own keep this it may be of use to you some day your Father J. H. Morrison." It was established that "Dear Frank" referred to the testator's only son, Frank A. Morrison (the appellant). The hearing judge summarized the surrounding circumstances: at the time the will was written the testator was having grave difficulties with his wife; his only son (just returned from the army) had gone to North Carolina to work and the letter was written to him there; the daughter was teaching nearby; the son returned within six months and thereafter the father and son saw one another constantly for twenty-seven years; the husband and wife separated shortly after the son's return and entered a formal separation agreement providing for conveyance of the home, farm and contents to the wife and releases between them.

The orphans' court sustained the appeal from probate and entered a decree striking off probate of the will. The proponent of the will moved for reargument which was refused, and a final decree was entered. The proponent appealed to the Supreme Court of Pennsylvania. The Supreme Court reversed the orphans' court decree and dismissed the appeal from probate; costs were to be paid out of the estate.

Legal Issues Presented

Whether the language in the holographic will ("if I never se you again I wont you to have everything I own") created a conditional gift that failed because the condition did not occur, or whether the clause was merely the occasion or reason for making an absolute testamentary disposition at that time.
What legal test governs the determination of whether a will or a bequest is conditional or absolute — specifically, whether the testator's words should be read as an expression of intent in light of surrounding circumstances, and whether prior constructions of similar wills control the result.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Morrow's Appeal, 116 Pa. 440, 9 A. 660	Illustration of the distinction between a will made because of an occasion and one that creates a conditional gift.	Cited as an example among authorities explaining when a testamentary provision is conditional versus absolute.
Forquer's Estate, 216 Pa. 331, 66 A. 92	Same general principle regarding conditional versus absolute testamentary dispositions.	Appears with other cases to show the established test for conditionality.
Davis's Estate, 275 Pa. 126, 118 A. 645	Same general principle regarding conditional versus absolute testamentary dispositions.	Used as part of the line of cases explaining the occasion-vs-reason distinction.
Moore's Estate, 332 Pa. 257, 2 A.2d 761	A closely parallel case where the court construed similar words as the reason for making the will and held the bequests absolute.	The court relied heavily on Moore's Estate as a controlling analogy: because the language was parallel, and Moore treated the expressed contingency as the reason for making the will, the present court applied the same construction and held the gift absolute.
Rosengarten Estate, 349 Pa. 32, 36 A.2d 310	The rule that the test of intent is the meaning of the testator's words, not speculation about what he may have meant.	Quoted to support the proposition that construction relies on the words used considered with surrounding facts.
Myers Estate, 351 Pa. 472, 41 A.2d 570	Same point: the meaning of the testator's words is the guiding test of intent.	Cited as part of the authorities establishing the textualist test of intent in will construction.
Leopold Estate, 356 Pa. 543, 52 A.2d 458	Same proposition regarding reliance on the meaning of words rather than conjecture.	Used to reinforce the textual approach to ascertaining intent.
Postlethwaite's Appeal, 68 Pa. 477	Authority for considering the surrounding conditions at the time of execution when construing a will.	Cited to show that words must be read in context of surrounding facts when interpreting conditional language.
McGlathery's Estate, 311 Pa. 351, 166 A. 886	Consideration of surrounding circumstances in interpreting testamentary dispositions.	Cited with other cases to support reading words in light of contemporaneous conditions.
Prime's Petition, 335 Pa. 218, 6 A.2d 530	Same point concerning surrounding conditions as part of will construction.	Included among cases instructing courts to consider context when construing wills.
Jackson's Estate, 337 Pa. 561, 12 A.2d 338	Cited both for the contextual approach and as an example that one will's construction is not necessarily a guide to another.	Used twice in the opinion: to support contextual interpretation and to illustrate the limited precedential weight of other wills.
Harris Estate, 351 Pa. 368, 41 A.2d 715	Support for considering surrounding conditions when construing wills.	Cited among authorities directing courts to consider facts existing at execution.
Eaton v. Brown, 193 U.S. 411	Quotation from Holmes advising courts not to "substitute a lively imagination" for what the testator actually said.	Quoted to emphasize that conjecture should not supplant the actual words of the instrument in determining testator's intent.
Nebinger's Estate, 185 Pa. 399, 39 A. 1049	Illustrates the state's adherence to textual construction and avoidance of speculation.	Cited as part of the Court's statement that it has rigidly adhered to the rule against speculative constructions.
Ludwick's Estate, 269 Pa. 365, 112 A. 543	Same principle: courts should not engage in speculation about testator's intent beyond the words used.	Included among precedents showing the Court's consistent approach.
Jacobs' Estate, 343 Pa. 387, 22 A.2d 744	Same adherence to textual construction and restraint from conjecture.	Cited to show the Court's consistent practice of relying on words and context rather than imagination.
Exr. v. Fetter, 267 Pa. 173, 111 A. 50 (cited as Bechtel)	Supports the principle that construing one will is no certain guide to construing another.	Used to caution against mechanically applying the construction of one instrument to a different instrument.
Williamson's Estate, 302 Pa. 462, 153 A. 765	Also cited for the proposition that one will's construction does not control another.	Included to bolster the point that each will must be interpreted on its own words and circumstances.
Emmerich Estate, 347 Pa. 307, 32 A.2d 400	Same principle limiting the precedential force of other will constructions.	Cited to emphasize that analogies to other wills are of limited value and context-specific.

Court's Reasoning and Analysis

The court began by stating the legal test: whether language expressing an event or contingency is to be construed as the occasion (i.e., the reason the testator made the will at that particular time) or as a condition precedent to vesting (i.e., the gift is to take effect only if the stated event occurs). If the words show the event was the occasion or reason for making the will, the gift is absolute; if the will plainly makes the gift depend on the occurrence of the event, it is conditional and will fail if the event does not occur.

The court emphasized that in seeking testator's intent the proper test is the meaning of his words considered together with the surrounding conditions existing when the instrument was executed — not speculation about what the testator may have meant. The opinion quoted and relied upon numerous Pennsylvania authorities and a quotation from Justice Holmes (Eaton v. Brown) to underscore the prohibition against substituting conjecture for the words written.

The court then compared the language of this holographic will to that in Moore's Estate, characterizing the wording as "almost parallel." In Moore, the similar clause was construed as referring to a trip that served as the reason for making the will at that time, and the bequests were held absolute despite the testatrix's subsequent return. Applying that analysis, the court concluded that in the present case the possibility that the testator might never see his son again was the reason for making the will on that date. The phrase "keep this it may be of use to you some day" was interpreted as negative evidence of any intent that the gift should fail if the testator later saw his son again.

The court reviewed the hearing judge's findings that the will had been modified by surrounding circumstances — including an asserted presumption of a desire for equality among children, the son's alignment with the father, the daughter's possible alignment with the mother, and the later separation of the parents — and that the will was "conditional and temporary." The Supreme Court rejected these conclusions as not based on evidence but on reasoning, deductions and conjecture. The court characterized the hearing judge's inferences about the testator's motives regarding the daughter and wife as speculative and therefore insufficient to overcome the ordinary meaning of the words and the controlling analogy to Moore's Estate.

Concluding its analysis, the court unanimously held that the expressed contingency was the occasion for making the will (the reason for making it at that time) rather than a condition precedent to the bequest. Therefore the testamentary provisions were absolute and the will was entitled to probate.

Holding and Implications

Holding: The Supreme Court reversed the decree of the orphans' court, held that the contingency in the holographic will was the occasion (reason) for making the will rather than a condition precedent, and ruled that the will's provisions were absolute and entitled to probate. The court dismissed the appeal from probate. Costs were ordered to be paid out of the estate.

Implications: The direct consequence is that the will was admitted to probate and the probate-striking decree was reversed; the proponent (the son) prevailed on appeal. The opinion applies settled rules about will construction (relying on the words and surrounding circumstances and cautioning against conjecture) but does not purport to announce new doctrinal law beyond applying existing authorities and the controlling analogy to Moore's Estate.

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Morrison Will.

Wills — Construction — Conditional or absolute — Test — Testator's intention — Ascertainment.

1. Whether a will is conditional or not depends upon whether the event which constitutes the expressed contingency is construed to have been the occasion for making the will at a particular time or the reason for making it in a particular way. [421]

2. In seeking the intent of the testator, to determine whether or not a will is conditional, the test is not what the testator may have meant, but the meaning of his words, considered in connection with the surrounding conditions at the time of the execution of the instrument. [421]

3. The principle that a construction of one will is no certain guide to the meaning of another has particular application in determining whether or not a will is conditional. [421-2]

4. Where testator in a holographic will provided as follows: "Dear Frank if I never se you again I wont you to have everything I own keep this it may be of use to you some day your Father"; it was Held, in the circumstances, that the will was absolute. [420-3]

Argued March 21, 1949.

OPINION BY MR. JUSTICE ALLEN M. STEARNE, April 11, 1949:

This is an appeal from a decree of an orphans' court sustaining an appeal from the probate of a holographic will on the ground that the will was conditional and there had been a failure of condition.

The words of the instrument are: "Nov 29 Dear Frank if I never se you again I wont you to have everything I own keep this it may be of use to you some day your Father

J. H. Morrison."

It was established that the date of the will was November 29, 1919 and that "Dear Frank" was testator's son, Frank A. Morrison, the appellant. The circumstances surrounding the execution are succinctly stated by the hearing judge as follows: ". . . the testator was having grave difficulties with his wife; his only son, home from the army, had gone to North Carolina to work, the letter being written to the son in the south; his only daughter was teaching school in a town near the family home; the son did return within six months; the husband and wife separated shortly thereafter and then entered a formal agreement of separation whereby the wife, in consideration of the conveyance to her of the home, farm and contents released testator and his estate from all demands and he released her; the father and son saw one another constantly during the twenty-seven years after the son's return."

Whether a will is conditional or not depends upon whether the event which constitutes the expressed contingency is construed to have been the occasion for making the will at a particular time or the reason for making it in a particular way. Thus: if the intent of this testator is construed to be (a) that testator desired his son to have the estate because he might never see the son again, the gift would be absolute but if (b) it was only in the event that testator should never see his son again that the son was to take, the testamentary provisions would be conditional and would fail if the parties did see each other before the death: Morrow's Appeal, 116 Pa. 440, 9 A. 660; Forquer's Estate, 216 Pa. 331, 66 A. 92; Davis's Estate, 275 Pa. 126, 118 A. 645; Moore's Estate, 332 Pa. 257, 2 A.2d 761. And, in seeking such intent, the test, as in any other will construction, is not what the testator may have meant, but the meaning of his words: 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, considered in connection with the surrounding conditions at the time of the execution of the instrument: Postlethwaite's Appeal, 68 Pa. 477; McGlathery's Estate, 311 Pa. 351, 166 A. 886; Prime's Petition, 335 Pa. 218, 6 A.2d 530; Jackson's Estate, 337 Pa. 561, 12 A.2d 338; Harris Estate, 351 Pa. 368, 41 A.2d 715. Justice OLIVER WENDELL HOLMES, in Eaton v. Brown, 193 U.S. 411, said, p. 413: "The English Courts are especially and wisely careful not to substitute a lively imagination . . ." (italics supplied) for what testator might have said but did not. This Court has rigidly adhered to this rule: Nebinger's Estate, 185 Pa. 399, 39 A. 1049; Ludwick's Estate, 269 Pa. 365, 112 A. 543; Jacobs' Estate, 343 Pa. 387, 22 A.2d 744. The principle that a construction of one will is no certain guide to the meaning of another ( Bechtel, Exr., v. Fetter, 267 Pa. 173, 111 A. 50; Williamson's Estate, 302 Pa. 462, 153 A. 765; Jackson's Estate, 337 Pa. 561, 12 A.2d 338; Emmerich Estate, 347 Pa. 307, 32 A.2d 400) has particular application in determining whether or not a will is conditional.

The words in the will in Moore's Estate, 332 Pa. 257, 2 A.2d 761, and those in the present case are almost parallel. In Moore's Estate, they are ". . . if any thing Hapins to me Before I come Home. . . ."; in the present case they are ". . . if I never se you again. . . ." In Moore's Estate, the testatrix wrote the will in contemplation of a trip which she took to Cincinnati; she stayed three weeks, returned to her home and lived twelve years thereafter. This Court, in an unanimous opinion by Mr. Justice LINN, construed the reference to the trip as the reason for making the will at that time, and held the bequests to be absolute. Construing the words in the present case, it is clear that the possibility of never seeing the son again was the reason for making the will at that time. The words "keep this it may be of use to you some day" would negative any presumed intention that testator intended the gift to fail if he should see his son again. Under the facts and principles stated in Moore's Estate, supra, such construction must prevail unless the meaning of the words was modified by the proven conditions surrounding the testator.

The learned hearing judge decided that the meaning of the words had been modified by the circumstances. He decided that there was a presumption that testator desired equality; that appellant, the son, "was clearly on the father's side"; whereas, perhaps the deceased daughter "took her mother's part and the testator struck out indiscriminately against wife and daughter, not knowing the protection given by the law to a man's widow"; and that "For all that appears [the daughter] was . . . dutiful and loving. . . ." The court further decided that the will was intended to be "conditional and temporary" because (a) of the son's absence (b) of the provision against testator's death before he saw his son again (c) of the change in marital status due to separation from his wife. All of these findings, however, are not in the evidence but are the result of reasoning, deductions and inference, based upon conjecture. Testator may have provided for his daughter, as well as for his wife, upon the separation. But such a surmise would, of course, be as the others, a matter of conjecture.

As we are unanimously of opinion that the contingency expressed was the occasion for making the will, its provisions are absolute, and it is entitled to probate.

The decree is reversed and the appeal from probate dismissed. Costs to be paid out of the estate.

MORRISON WILL