264 Pa. 71 | Pa. | 1919
Opinion by
This appeal is from the decree of the orphans’ court ordering the payment of a testamentary annuity and declaring it a charge upon real estate.
In 1913, the testator, William G. Johnston, died at his home in Watertown, New York, survived by a widow, Julia G. E. Johnston, the petitioner, to whom he was
The will appoints executors and trustees (one of whom is Stewart Johnston, the appellant), who are given the full and exclusive management of the estate with the right to sell real and personal property, but says, “No
The personal property, after deducting specific legacies and all expenses and liabilities including a claim of $41,212.41 allowed his first wife’s estate, is $63,050.16. The Penn avenue property became vacant in 1915, and, owing to its dilapidated condition, remained tenantless until the fall of 1916 when it was rented to Spear & Company for a term of years at a large rental, which-at first goes to reimburse the tenants for extensive and permanent improvements. Until 1916 the trustee paid the widow the testamentary annuities in full from the income, which since that time has proven insufficient, resulting in default followed by this proceeding whereby the widow seeks to recover the unpaid balance of such annuities from the corpus of the estate. The trustee brought this appeal from the decree of the orphans’ court granting her the relief prayed for.
As the annuities are expressly charged upon the real estate, the question of an implied charge is not involved, nor is the question of the annuity in the ante-nuptial agreement. The proceeding taken in this case is within the Act of February 24, 1834, P. L. 84 (incorporated in Section 25 of Fiduciaries Act of June 7, 1917, P. L. 447), which provides, “When a legacy is or shall be hereafter charged upon, or payable out of real estate, it shall be lawful for the legatee to apply, by bill or petition, to the orphans’ court having jurisdiction of the accounts of the executor of the will by which such legacy was bequeathed; whereupon such court......may proceed, according to equity, to make such decree or order touching the payment of the legacy, out of such real estate, as may be requisite and just.” The widow was the principal object of testator’s bounty and while he doubtless thought the income from the estate would prove ample to pay her an
The trustee executed the lease to Spear & Company, and at their request secured the written approval of the beneficiaries, including petitioner; that would prevent them from contesting the lease and require that a sale of the property be subject thereto, as probably would have been the case in any event. Beyond that Mrs. Johnston waived no rights by such approval. This is especially true as it was given under the written assurance of the trustee that, “Mrs. Johnston waives absolutely nothing by signing, except her future right to kick on terms and
The suggestion of appellee that the temporary deficiency be paid from the principal of the personal estate is worthy of consideration, doubtless it might by consent of the parties in interest; whether it could without such consent was not raised by any assignment of error nor discussed by appellant and we do not pass upon it. In our opinion the decree of the orphans’ court, declaring the annuities a charge upon the Penn avenue property and authorizing proceedings for their collection in case of default, was properly made.
The assignments of error are overruled and the decree is affirmed at the costs of the estate.