241 Pa. 290 | Pa. | 1913
Opinion by
By her last will and testament Mary Rowena Thomas disposed of her personal effects and devised her residuary estate in trust to pay over one-half of the income thereof to her unmarried daughter Cornelia; one-fourth to her married daughter Lucy Phillips, and the remaining one-fourth to her daughter-in-law Eugenia
The question presented for determination is the proper construction of the third codicil, and the effect to be given to it. Did the testatrix intend thereby to revoke the second codicil, and substantially re-enact the original will, with certain changes in the specific legacies? In the adjudication of the auditing judge, which was approved by the majority of the court below, it was held that the testatrix did not intend to revoke the provisions of the second codicil, and make void its reference to the estate of Mrs. Wyman. The conclusion reached was that in referring to “her estate” the testatrix regarded it as including the estate of Mrs. Wyman, but instead of providing for an equal distribution as directed in the second codicil, she restored the proportions as set forth in the original will; that the express purpose of the second codicil was to incorporate Mrs. Wyman’s estate with her own for the purpose of equalization, and not with the intention of changing the proportions of distribution; and that “the changing of the proportions thereby was apparently unwittingly done, and this fact may have been the inspiration
There is no controversy as to the law which is applicable to the case. Counsel for appellant concede that where a will and codicil are to be construed, they must be regarded as parts of one and the same instrument, and the codicil is not to be allowed to vary or modify the will, unless it be plain that such was the intention of the testator. But where there is a real diserépancy, the codicil, or if more than one, the last must prevail. Is there such a discrepancy between the second and third codicils in this case? In both of them the testatrix dealt of course with her own estate. She had no power to deal with anything else. In the second codicil she directed that an amount equal to one-third of the sum of her own estate and that of her sister should be deducted from the amount of her own estate and set apart for the benefit of the family of her deceased son, and the balance remaining of her estate was to be set aside for the benefit in equal amounts of her daughters Cornelia and Lucy. To illustrate by reference to the actual figures, as shown by the schedules, the estate of the testatrix as for distribution amounted to $45,234.10, and that of her sister Mrs. Wyman to $49,625.64, making an aggregate of $94,859.74. One-third of this amount, or $31,619.91, was, under the second codicil, to be set aside for the benefit of the family of her deceased son, and the remainder of her estate, $13,614.19, was to be set aside in equal proportions for the benefit of her daughters. This would give to each of them the interest of $6,807.10. But when the tes
Dealing as she was in both codicils with her own estate, we do not see that these differing provisions for distribution can be reconciled; and if not, the directions in the latter codicil must prevail. We can find nothing in the language of either codicil to justify the assumption that when the testatrix used the words “my estate” in the third codicil she intended to give to these words anything more than their natural meaning. In the second codicil she distinguishes clearly between her own estate and that of her sister Mrs. Wyman, and in directing the manner in which the computation therein prescribed was to be made, she refers to “the sum of both estates,” thus showing that she had each in mind. We think the inference is unavoidable that in using the words “my estate” in the third codicil, she gave to them not only their natural meaning, but the same meaning which she attached to them in the second codicil. The distribution which testatrix directed in that codicil did not produce equality in the division of her own estate. On the contrary, it contemplated marked inequality, but it avowedly did so for the purpose of evening up the results of the distribution of the estate of her sister. But in the third codicil she makes no reference, directly or indirectly, to her sister’s estate. No reason for this apparent change of mind was given, but none was required. She was at liberty to do as she pleased. We are unable to resist the conclusion that she abandoned the disposition of her property as set forth in the second codicil, and disposed of her estate in the third codicil without regard to the results of the distribution of her sister’s estate. With the consistency or inconsistency of
The assignments of error are sustained, and the decree of the Orphans’ Court is reversed, and the record is remitted that distribution may be made in accordance with this opinion.