Appeal of Mendinhall

| Pa. | Feb 25, 1889

Opinion,

Mu. Chief Justice Paxson:

The learned auditor and court below held that the legacy to the appellant oí $20,000 was revoked by the codicil to the testator's will, and that she is only entitled to her share of the residue of the estate. The contention of the appellant is that this ruling is erroneous for the reason that the testator based liis revocation of the legacy on the ground that the facts alleged by him in the codicil were true ; that as the reason for the revocation has failed, the revocation itself falls, and the appellant is entitled to be paid the $20,000. The rule as laid down in the text books appears to be this: “ And here it may be observed, that, when a testator by a codicil revokes a devise or bequest in his will, or in a previous codicil, expressly grounding such revocation on the assumption of a fact which turns out to be false, the revocation does not take effect, being, it is considered, conditional and dependent on a contingency which fails: ” 1 Jarman on Wills, 357; Powell on Devises, vol. 1, 528; 2 Roberts on Wills, 210; 1 Williams on Executors, 208. The two cases especially relied upon by the text writers in support of this proposition are Campbell v. French, 3 Yes. 821, and Doe on the demise Elizabeth Evans v. Henry Evans, 10 Ad. & E. 228. The learned auditor has collected a large number of cases, mostly English, upon this subject, which in the main sustain the text-writers.

The principle referred to may be conceded to be correct when applied to cases in which the falsity or error of the alleged fact rested not in the personal knowledge of the testator, but was assumed upon information derived from others; as in the case of Campbell v. French, supra, where by his will the testator gave legacies to A. and B., describing them as grandchildren of C. and then residing in America. By a codicil he revoked these legacies, giving as a reason that the legatees were dead. That fact not being true, and being necessarily derived from information of other persons, the legatees were held to be entitled to the legacy, notwithstanding the revocation. In the case in hand, the reason given by John Marshall, the testator, for the revocation of the legacy of $20,000 to his daughter, the appellant, was, that he had, since the execution of his will, given to his son-in-law, Edward Mendinhall, the husband of the appellant, one hundred and fifty shares of stock in the Marshall Iron Company, the par value of which was one hundred dollars per share, and had also loaned to him the sum of five thousand dollars. The appellant contends that this statement was untrue; that the transfer of the stock to his son-in-law was a sale, not a gift, and that he had never loaned him the five thousand dollars. The facts were that the testator transferred this stock to Mendinhall upon an agreement with the latter that he (Mendinhall) should “ execute and deliver to the said John Marshall his bond for the sum of $5,000, to secure the payment of interest on that sum at the rate of six per cent, payable semi-annually to the said John Marshall for and during the term of his natural life, and further agrees to pay to said John Marshall the dividends that may be declared on $2,500 of the capital stock of said company when and as declared for the term of five years from date of transfer as aforesaid, it being hereby agreed that if either the said John Marshall or Edward Mendinhall shall die within said five years, that then and in said ease said dividends shall not thereafter be paid to said John Marshall, but shall belong thenceforth to said Edward Mendinhall, his executors, administrators or assigns.”

The object of this arrangement is apparent. The testator was conveying to his son-in-law $15,000 of stock which it was believed would be valuable, and which in point of fact proved to be worth more than its par value, the dividends thereon being from ten to fifteen per cent. It was an advancement during the lifetime of the testator, over and above what his other children received at that time, and the provision for the bond of five thousand dollars and for the dividends upon $2,500 of the stock was doubtless intended to produce equality between his children, taking into consideration the testator’s expectancy of life. Be that as it may, the testator regarded it as an advancement; in point of fact it practically was so; the testator had the right to so treat it; the facts \yere peculiarly within his own knowledge, and we cannot deny him the right to do what ho pleased with Ms own property. Were we to reverse this ease and award the $20,000 legacy to the appel hint, we would cause gross inequality in this estate, the appellant would receive her full share, and her husband would get in addition $15,000 of valuable stock, for which he has paid nothing beyond a reasonable consideration for the advancement in the lifetime of the testator.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.