265 Pa. 175 | Pa. | 1919
Opinion by
Madeline A. Gamier died testate on or about August 30, 1917. The ninth clause of her will, dated June 14, 1915, is: “I will, bequeath and devise, divided into equal parts, all my right, title and interest in all the rest, residue and remainder of my estate whatsoever kind, whensoever and howsoever acquired, wheresoever situated, whether reduced to money or not, whether divided or not divided from that of my brother, to and unto my father’s great-grandson, Lafayette Adrian Gamier, if living at the time of my death, and to and unto the children of Janetta Laing Macafee, to him and to them and to his and their heirs and assigns forever.” To the will there was a codicil, dated April 10, 1917, the material part of it being: “I, Madeline A. Gamier, of the District of Columbia, testator in a two-page will dated June Fourteenth, Nineteen Fifteen, witnessed by Edwin Guthrie, Richard C. Balinger and William H. Proctor, have concluded to modify and revoke certain bequests therein, I accordingly, hereby, cancel and revoke paragraph third thereof, which bequeaths certain books, pictures and paintings to my brother Lafayette and that part of paragraph nine which makes his grandson one of my legatees and devisees.” The testatrix died unmarried and without issue, leaving as her only next of kin a brother, Lafayette S. Gamier, the appellee, who is the grandfather of Lafayette Adrian Gamier, referred to in the will as the great-grandson of the father of the testatrix. Upon the assumption that, by the revocation of the bequest and devise to Lafayette A. Gamier, without a substitutionary legatee or devisee, the interest which would have gone to
Tbe question before tbe court below was not an open one. There is nothing in tbe will of tbe testatrix, or in tbe codicil, indicating in tbe remotest manner ber intention that any part of what she bad given to Lafayette A. Gamier should pass to tbe children of Mrs. Macafee, if be should not take. Tbe provision for bim was unqualifiedly revoked, and what tbe testatrix bad originally intended for bim was undisposed of by ber at tbe time of ber death. It could, therefore, go only to ber next of kin. Wain’s Est., 156 Pa. 194, is conclusive of this. Wain, tbe testator, in a will dated April 7,1882, disposed of bis residuary estate as follows: “Tbe rest, residue and remainder of my estate, real and personal, I devise and bequeath to my sisters Mary, Sallie, Ellen and Annie, and my brother Edward, in equal shares.” Ellen died in 1887, unmarried and without issue; Edward died in October of tbe same year, leaving several children surviving. In 1890 tbe testator made tbe following codicil to bis will: “I revoke my bequest to my brother Edward, as be is not living.” Tbe testator died in tbe following year. Tbe fund before tbe court below for distribution was that part of testator’s residuary estate which would have passed under tbe residuary clause to Edward, bad be lived. Tbe auditing judge awarded it to tbe surviving sisters. Edward’s children claimed tbe one-fourth of it, on tbe ground that their uncle bad died intestate as to it, and on their exception to tbé adjudication their claim was sustained. This we affirmed, following tbe rule as
In entering judgment for the plaintiff the learned court did so on the theory that he had acquired only an undivided fourth interest in the residuary estate of his sister. He has not appealed from this, but now contends before us that his interest is an undivided half, and that we ought to so hold by entering judgment on the case stated in double the amount for which it was entered below. If we possess the power to do so, we shall not exercise it, for we agree with the court below that the appellant acquired only a one-fourth interest in the residuary estate of the testatrix. She bequeathed and devised, “divided into equal parts,” her entire residuary estate, real and personal, to Lafayette Adrian Gamier, if living at the time of her death, and to the children of Janetta Laing Macafee. The three children of Mrs. Macafee, who survived the testatrix, are Frieda Macafee, Gladys Macafee and Colin Macafee. What share would each of them have taken in the residuary estate if the provision for Lafayette A. Gamier had not been revoked? Clearly, one-fourth, and in demonstration of this nothing can be profitably added to the following from the opinion of the learned president judge of the court below entering judgment for the plaintiff for the purchase-price of a one-fourth interest: “The plaintiff contends that he is entitled to one-half of the residue. The defendant’s position is that, at most, he could only claim one-fourth. In Jarman on Wills, Yol. 2, page 756, it was said: ‘Where a gift is to the children of several persons, whether it be the children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes. The same rule
Judgment affirmed.