Appeal of Gable's Executors

40 Pa. 231 | Pa. | 1862

The opinion of the court was delivered,

by Read, J.

The Orphans’ Court were perfectly right in charging interest on the balance for distribution in the hands of the executors, for the fund was drawing interest, not for the benefit of the accountants, but for that of the legatees. With regard to the omission of Joseph Kelly in the auditor’s report and in the decree, there appears to have been no exception taken in the court below, and we have nothing before us to enable us to correct an error, if there be one. If it is an error, upon being shown to the Orphans’ Court, it will no doubt be rectified or provided, for.

With regard to the share to which Mrs. Ann Paul would be entitled, if she can prove herself to be the daughter of George Gable, the brother of Michael, if the Orphans’ Court are certain that there will be sufficient funds to pay her, in case she establishes her right, then their present decision can do no harm; but if they are not, then a sufficient fund should be set aside to meet it, and be placed in some safe depository, drawing interest, or in some safe security under the direction and control of the court, to abide the event. In ordering the amount coming to the children of Solomon Gable into court, the Orphans’ Court were perfectly right, and the executors should be obliged to them for relieving the appellants from all responsibility in relation to this share.

The auditor, however, made a clear mistake in his construction of the will of the testatrix, by thinking that children included grandchildren. The will divides the residue of her estate into two parts: one half part is given to the testatrix’s “brothers and sisters of the whole blood, and the children of such of my brothers and sisters of the full blood as are deceased, share and share alike — the children of each deceased brother or sister to take together, for their share, an amount equal to the share of a surviving brother or sister, and no more,” which is exactly the provision of the Intestate Act of 1833, which has never been supposed to include grandchildren; so the disposition of the other half to the brothers and sisters of her deceased husband and their children, in similar language, must follow the same construction, and exclude grandchildren from any share in her bounty.

This construction is the more important, as the last-named legatees are the very same individuals who, under the Intestate Act, claim the after-acquired real estate, which is the subject of the suit by Mrs. Gable’s executors against Jacob Daub. They are therefore put to their election, for they cannot claim both under and against the will, and it virtually gives the power to the court to settle both disputes without delay or difficulty.

The decree below must therefore be amended in these particulars, and they will no doubt do whatever the law requires in relation to refunding bonds.

Decree. — It is ordered and decreed that the decree of the court below be reversed, so far as relates to the admission of the grandchildren to share as legatees, the brothers and sisters of the whole blood, and the children of such as are deceased, both of the testatrix and of her husband, being only included by the terms of the will; and with this alteration and the recommendation as indicated in the above opinion, the decree is affirmed, and the appeal is dismissed at the costs of the appellants.