32 A.2d 400 | Pa. | 1943
This contest is between the widow and son of testator against three named charities. The question involves the construction of testator's holographic will. Decedent was a lawyer, but for many years had ceased to practice actively. The language is most obscure and involved. What Mr. Chief Justice MAXEY wrote in Williamson's Estate,
The first part of the testamentary scheme appears clear. Testator devised his home to his widow in fee. He then gave to his trustees, securities to be selected by the widow, to secure to her, for life, an income of $5,000. per annum. By a similar bequest he provided for his son, for life, so that the son's income should be $2,400. per annum, but, should the testator's widow die in the son's lifetime, the son was to receive $5,000. per annum. Testator's brother likewise was given a similar gift, for life, of $1,000. per annum. Following the bequest to the brother, testator bequeathed absolutely $1,000. to each of two named individuals. He also provided that upon the death of the brother, $2,000. was to be given to each of five named persons. These latter legacies were manifestly payable out of the corpus set aside for the use of the brother, and upon his death, by agreement of all parties, it was so distributed.
Testator then wrote this clause: "The returns from the remainder of the fund set aside for my brother shall *309 be divided two-thirds to Franz's Mother and one-third to my son, Franz, as shall the returns from any part of this estate not otherwise disposed of, meaning by this that any sum left or which may accrue, shall be divided, leaving them in excess of the $5000.00 per annum and the $2400.00 per annum heretofore provided".
From the foregoing, it seems clear that by "returns" or sums which may "accrue", testator was referring to income and not to corpus. He provided that not only such income "from theremainder of the fund set aside for the brother" but from "any part of this estate not otherwise disposed of", shall be divided two-thirds to the widow and one-third to the son. From the foregoing language there appears not to be the slightest doubt that the testator bequeathed two-thirds of the income from his residuary estate to his widow, and the remaining one-third thereof to his son. It is most significant at this point to note that while testator bequeathed the income from his residuary estate, he made no disposition of corpus.
Testator's next concern relates to the contingencies after the son's death, of the survival of the son's widow, or her remarriage, or of the son leaving children of, or not of, a named religious faith; also of the testator's widow taking against his will. In these various situations testator increases or diminishes the amount of income payable to certain of them.
After pausing in these testamentary dispositions to give to a fraternal lodge a legacy of $500., and to a friend the testator's office furniture and law books, he writes the following clause, which gives rise to the present controversy: "Concerning any residue or remainder of estate which may hereafter be left in case of those interests left to my son Franz or his family defaulting, I desire that it shall be divided into four equal parts. One part shall be given to the United Charities of Hazleton, Penna., as a mark of my respect for my friend Mrs. Gayley; one part to Saint Peter's Episcopal Church of Hazleton, *310 Penna., and two parts to the Lehigh University of Bethlehem, Penna.".
The charities maintain that the foregoing is a residuary clause, bequeathing to them the testator's entire residuary estate, subject to the life estates of the widow and the son. They maintain that the widow and the son are limited under the will to life estates in the proportions of two-thirds and one-third, and that after their respective deaths, the corpus passes to the charities absolutely.
We agree with the court below that the widow and the son are presently entitled to the residuary estate absolutely.
From the above recital of the facts, it is to be observed that in the elaborate provisions as to the funds to be set up to produce the annual sums of $5,000. and $2,400. and $1,000., for the benefit of the widow, son and brother, respectively, all of these were restricted "for life" and as to the son, also "subject to the limitations further on in this will". When, however, the testator disposed of the "part of this estate not otherwise disposed of", which is the fund now before the court, he made but a simple gift to his widow and son in proportions of two-thirds and one-third. This clearly was a gift of income and it was a gift without limit of time. It, therefore, is an absolute vested interest: McKinstry's Est.,
There is no merit in the appellants' contention that the widow and son are bound by the confirmation of the executors' account and their acceptance of income for nineteen years without claim to the principal. It is well settled that an award in trust for a legatee for life is not conclusive that he did not have an absolute estate, where the question was not raised and passed upon in that accounting; Johnson's Est.,
The judgment of the court below is affirmed. Costs to be paid out of the fund.