30 Pa. Super. 145 | Pa. Super. Ct. | 1906
Opinion by
The testatrix, a widow, died without issue, leaving to survive her Daniel Boeckel, a brother, seven nephews and nieces, children of Elizabeth Sipe, a deceased sister, five nephews and nieces, children of Louisa Sipe, a deceased sister, and a nephew and niece, children of Michael Boeckel, a deceased brother. She directed by her will the place and manner of her burial, the payment of her debts and funeral expenses, and the payment of $50.00 to the church at which she was to be buried for the care of graves, and then directed her executor to convert all her estate into money as soon as possible either by public or private sale; The will then proceeds, “ and after the same
It is reasonable to presume that the testatrix knew the statutory rule of distribution, but the fact that she made a will is not, of itself, ground for any certain inference that she intended to depart therefrom in all particulars, and to distribute her estate per capita, especially as the directions referred to above and the appointment of- an executor show that she had other adequate motives for making a will. “ Whilst we are not to hesitate to allow him (a testator) to alter the descents provided in the statute, we are not, on the other hand, to presume, from the fact that he made a will, that he meant its construction should be at all possible points inconsistent with the statute: ” Risk’s Appeal, 52 Pa. 269.
Great stress is laid on the words “ share and share alike ” as indicative of an intention that the share of each beneficiary under the will should be equal to the share of ever other beneficiary ; in other words, that the share of each nephew and niece should be equal to the share of the only surviving brother of the testatrix. But this expression would be appropriate if the testatrix had in mind a division among classes; at least it is not conclusive of the question whether the distribution was intended to be per stirpes or per capita. In the case just cited the provision of the will that the proceeds of the sale of testator’s real estate, after deducting $1,200, should “ be equally divided between my beloved children, George and Joseph, and the children of my beloved daughter Catharine ” was interpreted to mean a division per stiipes. The word “equally,” said Chief Justice Woodward, “means that the class shall share equally with George and Joseph. This is the grammatical construction of this adverb, for the names George and Joseph and the class are connected by copulatives that apply all the qualifying terms to them alike.” In a casé where the will di
Looking then at the similarity of the form of the gift to that construed in Fissel’s Appeal, 27 Pa. 55, Minter’s Appeal, 40 Pa.
The conclusion at which we have arrived is, in our opinion, in accordance with the actual intention of the testatrix; but it is not necessary to be able to assert with absolute certainty
The decree is affirmed and appeal dismissed at the costs of the appellant.