173 A. 190 | Pa. | 1934
Argued May 1, 1934. After certain bequests, unimportant here, testator bequeathed $230,000 in varying amounts to specified charities, $275,000 in trust for a nephew for life with remainder to his surviving descendants, and $300,000 in trust for a niece for life with remainder to her surviving descendants. His will then provides as follows:
"ELEVENTH. I have made and divided the foregoing bequests upon the basis of the face value of my securities as I now own them. If by reason of depression in values of my estate as a whole, the payment of all the foregoing legacies in full is not practicable, I direct that the gifts in trust for my niece, Eleanor A. Bryant Pearson, and my nephew, P. F. Rothermel, 3rd, shall take precedence over the other bequests, which latter, in that event, I direct shall abate proportionately.
"TWELFTH. All the rest, residue and remainder of my estate, of whatever description, real, personal and mixed, I give, devise and bequeath to my said nephew, P. F. Rothermel, 3rd, as his absolute property. *154
"THIRTEENTH. I direct that all collateral inheritance, Federal estate and other taxes payable at my death shall be paid out of my residuary estate if the said residuary estate shall be sufficient for that purpose, or to the extent that it shall be sufficient for that purpose, to the end that, if practicable, the pecuniary and specific legatees mentioned in this Will may get their legacies in full, or shall suffer no deduction therefrom beyond what may be necessary to pay said taxes."
Upon the settlement of the account of the executors, it was found that the balance for distribution was not sufficient to pay the charitable and trust legacies in full, whereupon the court below, in accordance with the eleventh paragraph of the will, decreed the payment in full of the trust legacies and directed that the residue be divided among the charitable legacies pro rata. It was claimed by the trustees of the trust legacies that, because of the 13th paragraph of the will, the court, under the principle announced in Croxton's Est.,
Croxton's Estate, supra, lends no aid to appellants' contention. We there decided that "An additional legacy, given by a will to one to whom a legacy had been previously given thereby, is prima facie subject to the same incidents and conditions as the original legacy," and that "the mere failure to repeat, in the gift of the additional legacy, the incidents and conditions set forth in the original gift, does not affect the presumption." There can be no presumption of fact, however, as against a fact which is admitted or proved: Ludwick's Est.,
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellants. *156