100 Pa. 385 | Pa. | 1882
delivered the opinion of the court, October 2d 1882.
After providing for the payment of his debts and beqeathing a portion of his estate to his widow, the testator, Martin Buehler, directed the residue of his estate to be equally divided among his children, of whom Robert M. Buehler was one, with this proviso, “ that there shall be deducted from the share of each of my children, to whom I have made any advances, the amount of such advances.” He afterwards revoked the devise to his son Robert by the following clause in the codicil, viz.: “ I do hereby revoke the devise to my son Robert M. Buehler in my said will contained and set forth in the following words, so far as they affect my said son, to wit: ‘ And the rest, residue and remainder of my whole estate, real and personal, I give, devise and bequeath to such of my children as may be living at the time of my decease. I do hereby give, devise and bequeath the shares of my sons in my estate to them respectively, their heirs, executors, administrators and assigns forever.’ ” In the same connection he disposed of the share which Robert would otherwise have taken under his will, as follows, viz.: “And I do hereby give, devise and bequeath the share of my said son unto my daughter-in-law, Mary, the wife of my said son Robert M. Buehler, to her and her heirs,” etc.
The question is whether, under tnis devise of Robert’s share to his wife, she is entitled to a full share of the estate, unaffected by advancements made to him by the testator in his lifetime, or whether in ascertaining her distributive share the advancements so made are to bo deducted as directed in the proviso above quoted. The learned auditor found that the advancements to Robert were in excess of a full share in the fund for distribution, and under his construction of the will and codicil thereto he refused to distribute anything to Robert’s wife, holding that she was substituted legatee in place of her husband, and thus occu
The question thus presented is a very narrow one, and must be determined by the expressed intention of the testator as disclosed by his will. In the proviso above quoted he directs the manner in which the net share of each child shall be ascertained. He afterwards revokes the bequest to Robert as contained in the two sentences of his will quoted by him in the codicil, but he carefully avoids changing or annulling the mode in which the share of each child is to be ascertained. He then gives the share of his son Robert to his daughter-in-law. What then is the share of Robert, that is thus taken from him and given to his wife ? It is the share that he would be entitled to if his wife had not been substituted as a legatee in his stead, and that is to be ascertained in the mode pointed out by the will. It follows that the fii’st report of the learned auditor was cox’rect and should have been confirmed.
Decree reversed at the cost of the appellees, and it is ordered that the record be remitted with instructions to distribute the fund according to the original report of the auditor.
