117 Pa. 238 | Pa. | 1887
Opinion,
After giving this case our very careful attention, we fail to understand why the conclusion of the auditing judge was not adopted by the court below. By the codicil of the 2d of February, 1882, the trunk and its contents were bequeathed to Mary Magoohan, and that that bequest, without more, did vest in her a good title, not only to the trunk, but also to its contents, is not a matter of doubt or question. What then is there in this case to defeat her right ? The paper which she, Mary Magoohan, after the testator’s death found in the trunk? — but certainly that paper was neither a will in itself nor a codicil to the original will, for it was not executed in such a manner as to make it either. The learned judge, however, who delivered the opinion of the court below, endeavors to support his conclusion by the following process of reasoning : “ Had the testatrix in the codicil given the trunk and its contents upon the terms set forth in a paper there to be found, it would be no undue extension of the principle illustrated by Baker’s App., 107 Pa. 381, to hold that the paper thus referred to was to be treated as incorporated in the codicil, under the maxim, verba illata inesse videntur. But the manner of reference is immaterial; it may be eitjier by express language or by implication. The question is one of intention only, and when among the contents given'is found a carefully expressed paper defining precisely how far the legatee is to hold beneficially, no one can doubt the existence of the intention.” Two errors are obvious in the above stated argument. The first is, that
As to the question of the alleged fraud of the testatrix on her husband, it can have no place in the present controversy.
The appellee knew nothing about it, hence, her rights cannot be affected by it. It must affect the will itself, if anything, and that is not now called in question.
The decree of the court below is now reversed at the costs of the appellee, and it is ordered that the adjudication of the auditing judge, dated January 8, 1886, be and stand for the decree of the court.