181 A. 484 | Pa. | 1935
Patrick Golden died October 21, 1933, having previously on October 16, 1933, made his last will and testament as follows: "I wish to leave my wife Winnie Golden all my possessions during her lifetime after which I leave share share alike to all my children or their heirs, except Robert who is to receive $10,000 more than the rest without restrictions." The widow elected to take against the will.
At the time of his death testator left surviving him his widow, two sons and one daughter, viz., Robert Golden, John A. Golden and Ella E. Cunningham. Additional to these, he had also five living grandchildren, the children of deceased children, namely, Vincent J. Joyce and Gladys Joyce Kennedy, children of Mary Golden Joyce, deceased, and John C. Golden, Mary C. Stanton and William E. Golden, children of Patrick Golden, deceased. Testator was also the father of three other children who died in infancy without descendants.
The questions raised for consideration and determination under testator's will were properly disposed of in the lower court, and we now adopt the following excerpts from the opinion of Judge TRIMBLE in disposing of the case:
"The question now is: Who are the heirs of the deceased children of Patrick Golden who were living at the time he made his will and at the time of his death? *6
In Wunder's Est.,
"Counsel for the grandchildren living at his death, answering the argument that 'all my children' referred to Ella, John, and Robert and that 'their heirs' referred to their children only, relies specifically upon Sorver v. Berndt,
"Testator's language seems to be very clear. His wife, his children, his son-in-law and daughter-in-law, and his grandchildren were in his mind when he wrote his will disposing of the remainder of his estate share and share alike 'to my children or their heirs.' The heirs must be determined by the statutes of distribution unless a contrary intent is indicated by the will.
"It follows that the decree [of December 13, 1934] must be modified so that the distribution will be made to the three living children and to the spouses and children of deceased children who were living at the testator's death and it will be so ordered."
The decree of the lower court made March 18, 1935, with its order of distribution, is affirmed. Costs to be paid by appellant. *8