43 A.2d 359 | Pa. Super. Ct. | 1945
Argued April 16, 1945. Annie S. Moore died March 8, 1938, testate. This appeal involves the construction of her holographic will, which reads as follows: "I an writeing my Will if any thing Hapins to me Before I come Home I Will ten Thousand to Mrs. Lizzie Lewis the rest of my Estate to be sold and all Debts Paid I to be laid away the Same as Bob all Debts Paid the remainder to be Devided Between my Nephues Niece and Bob Nephues Nieces and five Hundred to the Methodist Church and Five Hundred to each of the Home Foringan Mishinary Cocity and Five Hundred to the Cemetary Asoation to Keep the Graves and Lots of Moores and Bushes in repair this is my Will I write and sign. Mrs. Annie S. Moore."
"Bob" was her husband, and "Mrs. Lizzie Lewis" was her husband's sister. Mrs. Moore's maiden name was Bush. She left to survive her three nephews and one niece. Robert Moore had 18 nephews and nieces. The question in dispute is whether the will divides the estate into moieties, one of which would go to the testatrix' nephews and niece, and the other to the nieces and nephews of Robert Moore, or whether all the nephews and nieces of both testatrix and her husband are entitled to share on a per capita basis. The learned court below distributed one-half of the funds in the accountant's hands to the nephews and niece of the testatrix, and the other one-half to the nephews and nieces of the decedent's husband. We are in accord with that construction of the will. *298
It will be noted that the testatrix provides that her residuary estate shall be divided "between" her nephews and niece "and" her husband's nephews and nieces, but none of them were mentioned by name. When a number of persons are not named, but included in a general description it is a gift to them as a class: Brundage'sEstate,
While there is no duplicate of this unique testament, other wills have been construed by the courts that have some features in common with it. They, like guide posts, give aid to reaching the correct goal.
We turn first to Herman's Estate,
In Estate of Samuel Green, Deceased,
In Ihrie's Estate,
One of our leading cases construing the word "between" in a will, is Ghriskey's Estate,
In the recent case of Lenhart's Estate,
The cases relied upon by the appellant, while holding that "between" and "among" in some circumstances may be construed synonymously, the facts in each of them are dissimilar to those before us. For instance, in Bayard's Estate,
In Estate of William Hicks,
We are convinced that the learned court below was right in distributing the residuary clause into two parts, one-half to the nephews and niece of Annie S. Moore, and the remaining half to the nephews and nieces of Robert S. Moore.
Decree of the court below is affirmed at appellant's costs.