36 A.2d 835 | Pa. Super. Ct. | 1944
Argued March 14, 1944. In the eighth paragraph of his will, James Wood provided:
"I give and bequeath unto my dear friend, Lena H. Coates, the sum of Six thousand five hundred dollars, in remembrance of her kindness to my self, and my dear wife, Elizabeth K. Wood, (uncle James and aunt Lizzie,) should Lena H. Coates, death occur before mine it is my will that this Six thousand five hundred dollars, shall revert to the residue of my estate, but I give and bequeath unto her son Howard Coates, the sum of One thousand dollars, free and clear of collateral inheritance tax, the residue of my estate, after the above mentioned bequeath's have been paid, I wish divided equally with my brother Jesse Wood, and my surviving nieces and nephews, of my brothers and sisters, share and share alike, should my brother Jesse Wood, death occur before mine I direct that his share shall go to his great grandson Jesse Wood."
The brother, Jesse Wood, predeceased testator. The Orphans' Court of Lancaster County awarded one-half of the residue to the great grandson, Jesse Wood, and one-eleventh of the other half to each of eleven nieces and nephews. Appellant, a nephew, filed exceptions.
His first contention is that the residuary estate should have been distributed per capita throughout and that he should have received one-twelfth of the entire residue. *631 We think the court correctly concluded testator intended the class should share equally with the brother — that the residue should be distributed between the two classes.
Precedents are of little value in a case of this kind. Joyce'sEstate,
"The use of the word `with' in the phrase `divided equally with' is rather unusual. The word which is more commonly used is either `between' or `among.' See Ghriskey's Estate, [
"The conclusion, therefore, is inescapable that testator intended an equal division in moieties, one moiety to his brother Jesse Wood and another moiety which was to be distributed share and share alike to his nieces and nephews."
The legal principles which support the conclusion reached are that wherever the construction of a will is in doubt that construction should be adopted which favors (1) the nearest of kin, (Penrose's Appeal,
Lena H. Coates survived testator. The court directed that the collateral inheritance tax on the bequest to her be charged to the residuary estate. See Estate of Elliot,
Although the bequest of one-half of the residuary estate is to the class of "surviving nieces and nephews," the court, through an oversight, awarded one-eleventh of the one-half residue to the legal representatives of a niece who predeceased the testator. See Wood's Estate,
The record is remitted with direction to redistribute one-half the residue among the ten nieces and nephews who survived testator, otherwise the adjudication is affirmed. Costs to be paid out of the estate.