447 Pa. 469 | Pa. | 1972
Opinion by
The question presented by this appeal is whether in the absence of a gift over in a will, the prior death of the sole legatee, testatrix’ sister, caused the devise to
On December 26, 1970, the decedent, Marie J. Bickert, and her sister, Frances Sweeney, both in their seventies, were found dead in the house they shared in Lower Frederick Township, Montgomery County. Which sister died first is unknown, but under the Uniform Simultaneous Death Act Marie Bickert, the testatrix, is presumed to have survived.
Mrs. Bickert died testate, survived by two adult sons, William F. Bickert and Harry F. Bickert, appellees herein. Her will, dated July 7, 1969, named Frances Sweeney as the only beneficiary. In pertinent part the will provided:
“2. I devise my premises where I now live in Lower Frederick Township, together with the contents of said real estate, together with any insurance policies thereon, to my sister, Frances Sweeney.
“8. I devise and bequeath the rest, residue and remainder of my estate, of every nature and wherever situate, to my sister, Frances Sweeney.” There was no gift over in the event that Mrs. Sweeney predeceased the testatrix.
The will was duly probated, and, the corporate fiduciary named as executor having renounced, the Register of Wills appointed the appellees as administrators c.t.a. of their mother’s estate. Thereupon Marie Trow-bridge, the only issue of Frances Sweeney, filed a peti
Normally, when a testamentary gift fails due to the death of a devisee or legatee during the testator’s lifetime, a lapse occurs. Berger Estate, 360 Pa. 366, 371, 61 A. 2d 855 (1948). Lapsed nonresiduary gifts fall into the residue, while lapsed residuary bequests or devises pass to other residuary legatees or devisees, if any, and in their absence pass as by intestacy. Act of April 24, 1947, P. L. 89, §§14(9) and (10), 20 P.S. §§180.14(9) and (10). Clearly, if the testamentary gifts to Frances Sweeney lapse, the entire estate must pass by intestacy to appellees, testatrix’ heirs, at law, because the sister is the sole residuary legatee.
To reduce the incidence of lapses, generally disfavored in the law, Pennsylvania has long had an anti-lapse statute. It is presently found in §14(8) of the Wills Act as a rule of construction, as follows: “In the absence of a contrary intent appearing therein,
Since the testatrix left issue surviving, appellant concedes that absent a contrary intention, the proviso clause above dictates a lapse and a consequent intestacy in the case at bar.
Decree affirmed. Costs on appellant.
Section 1 of the Uniform Simultaneous Death Act, Act of June 19, 1941, P. L. 188, 68 P.S. |521, provides as follows: “Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived. . . .”
At oral argument, appellee Harry F. Bickert appeared in propria persona to state that he had made an assignment of his interest in this estate to appellant, whom he would be glad to see succeed in this appeal. He also informally announced the death of his brother, William F. Bickert, the other appeUee. The effect of such assignment and the death of William Bickert are matters to be taken into consideration in the framing of the final decree in this estate.
“In all cases where a lapse would clearly cause an intestacy, the proviso is easy to apply, and except for the new provision for testator’s widow, the law has remained unchanged since 1844. Thus, if testator is survived by a widow and children, but leaves his entire estate to his brother who dies before testator but is survived by issue of his own, the gift to the brother will clearly lapse and the property will pass to the spouse and testator’s children under the Intestate Act. See, for example, Barnett’s Estate, 104 Pa. 342 (1883).” Bregy, Wills Act, §14(8), pp. 3267-8. See also Aker, Pennsylvania Probate and Interpretation of Wills, §4.9J (1963).