277 Pa. 444 | Pa. | 1923
Opinion by
Thomas W. Walker, of Centre County, died in 1917, leaving a widow, Annie E. Walker and three sons, viz, Orvis C., Lloyd B. and Victor I. Walker, and a last will, as follows: “First. I bequeath to each of my three sons, their heirs or assigns as follows to wit: — to Orvis C. $500: — to Lloyd B. $500: — to Victor I. $500., all of these alike sums, to be paid out of moneys, or its equivalent, from my estate as soon as convenient after my death. Second. All the residue or remainder of my estate, be it realty or personal property, wheresoever the same may be, or whatsoever it may consist of, I will and bequeath to my beloved wife Annie E. Walker, in lieu of her dower at common law, to hold and possess the same, during her lifetime, and that at the death of my wife, all the property hereby devised or bequeathed t'o her, as aforesaid, or so much thereof as may then remain unexpended, I give unto my three sons aforenamed, in equal shares, and to their heirs forever. My will is that my said wife shall have sole and exclusive control of all my estate during her natural lifetime, and I hereby empower her to sell any realty or any property of my estate, and to make, execute and deliver to the purchaser thereof good and lawful deed or deeds for the same, as I might do if living. I appoint my wife Annie E. Walker, and my oldest son Orvis C. Walker the executors of this my last will and testament, and empower them to sell any property and convey title for same, the same as I could, were I living, without appraisement or order from the orphans’ court.” The executors qualified and in 1918 filed a partial account charging themselves with $1,972.57, and claiming
In treating the legacy in question as contingent, the lower court fell into error. All authorities agree that where a testator gives an estate to his widow for life and at her death to his children, the latter take a vested remainder (see Porter v. Bryant, 273 Pa. 435; Jennings’s Est., 266 Pa. 60; Groninger’s Est., 268 Pa. 184; Chess’s App., 87 Pa. 362; McClure’s App., 72 Pa. 414), but that principle is contested here because of the widow’s power of sale and, for the purpose of this case we assume, right of consumption of the principal of the estate. Such right,
Furthermore, the law leans in favor of a vested rather than a contingent estate and the presumption is that a legacy is vested: Rau’s Est., 254 Pa. 464; Neel’s Est., supra; Tatham’s Est., 250 Pa. 269; Carstensen’s Est., supra; “The law......will not suffer the inheritance to be in abeyance if by any reasonable construction of the will this can be avoided”: Packer’s Est. (No. 2), 246 Pa. 116; and see Bache’s Est., 246 Pa. 276; Letchworth’s App., 30 Pa. 175.
This is also a case of parent and child. In such case, as said by the present Chief Justice, speaking for the court in Groninger’s Est., supra, p. 189, “The presumption that a legacy is intended to be vested applies with far greater force where a testator is making provision for his children than where the gift is to strangers or collateral relatives (Wengerd’s Est., 143 Pa. 615, 621; also see Minnig v. Batdorff, 5 Pa. 503); and the reason for this is apparent, for, in the absence of plain evidence on the face of the will itself of a purpose to that end, it cannot be contemplated that one would intend to cut off possible surviving grandchildren, from an inheritance given their parent, simply because the latter might happen to die during the continuance of an anterior life estate:” and see Marshall’s Estate, supra. The present will is alike as to all the sons and it is highly improbable the testator intended to cut off the children of either in the event of their father predeceasing t'he life tenant; the will contains nothing to suggest such an intent. The legacy being vested, passed to the estate of Orvis C. Walker.
That the widow had power to sell t'he real estate, with the right to consume the proceeds, did not enlarge her estate therein to a fee: Schaaf et al. v. Politowski, 276
Appellees’ contention, that appellant cannot compel them to file an account as administrators of the Thomas W. Walker estate until she first files a final account for Orvis C. Walker as an executor of said estate, was not raised in the court below and is without merit. Appellant has such a prima facie interest in the estate as enables her to call upon appellees for an account; other questions can be raised on distribution. In Houser’s Est., 177 Pa. 441, called to our attention by appellees, the question of the necessity for such account was raised on final distribution.
The decree of the orphans’ court is reversed at the costs of the appellees and the citation is reinstated with a procedendo.