Carson's Estate

• Decision Date: 28 March 1910
• Docket Number: 256
• Citation: 227 Pa. 543,76 A. 419
• Parties: Carson's Estate
• Court: Pennsylvania Supreme Court

76 A. 419

227 Pa. 543

Carson's Estate

No. 256

Supreme Court of Pennsylvania

March 28, 1910

Argued January 31, 1910

Appeal, No. 256, Jan. T., 1909, by the Real Estate Title Insurance & Trust Co., and Isabel Frances Carson, trustees and Isabel Frances Carson, individually, from decree of O.C Montgomery Co., Oct. T., 1908, No. 41, dismissing exceptions to adjudication in Estate of Robert N. Carson, deceased. Affirmed.

Exceptions to adjudication of executors' accounts.

The facts appear in the opinion of the Supreme Court.

Error assigned was decree dismissing exceptions.

Appeal dismissed at appellants' costs.

John C. Bell, with him Paxson Deeter and Neville D. Tyson, for appellants. -- The will and codicil should be construed together and construed to effectuate the intent and general scheme of the testator: Ferry's App., 102 Pa. 207; Schott's Est., 78 Pa. 40; Findlay v. Riddle, 3 Binn. 139; Roberjot v. Mazurie, 14 S. & R. 42; Boshart v. Evans, 5 Whart. 551; Shalters v. Ladd, 163 Pa. 509.

The presumption is in favor of equality as between those standing in the same relation to the testator: Roats's Est., 14 Pa. Dist. Rep. 767.

Martin J. Wade, with him Joseph Knox Fornace and George P. Grosch, for appellees. -- It is the established rule not to disturb the dispositions of a will further than is absolutely necessary for the purpose of giving effect to the codicil: Whelen's Est., 175 Pa. 23; Lewis's App., 108 Pa. 133; Spang v. Hill, 2 Woodward, 45; Sheetz's App., 82 Pa. 213.

The intention is to be ascertained from the words if of certain, definite meaning: Moran v. Moran, 104 Iowa 212 (73 N.W. 617); Jordan v. Woodin, 93 Iowa 453 (16 N.W. 948); Gilmore v. Jenkins, 129 Iowa 686 (106 N.W. 193); Young's Est., 123 Cal. 337 (55 Pac. Repr. 1011); Senger v. Senger, 81 Va. 687; Bingel v. Volz, 142 Ill. 214 (31 N.E. Repr. 13), 16 L.R.A. 321.

Before BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

PER CURIAM:

The testator, by the fifth clause of his will, gave his residuary estate to his executors in trust, directing them, inter alia, as follows: "To pay from the said net income unto each of my brothers and sister who shall survive me, an annuity or yearly sum of Six thousand dollars, in quarterly payments, in each and every year from the time of my decease, for and during all the terms of their natural lives, respectively; upon the decease of any of my said brothers and sister, the payment of the said annuity or yearly sum shall cease and end, so far as concerns the one or those so dying.

"To set apart as many sums of Twenty thousand dollars as I shall leave nephews and nieces surviving me (such nephews and nieces being the children of any of my brothers or sister who shall have died in my lifetime) and to pay the net income from each of the said sums of Twenty thousand dollars in quarterly payments in each and every year from the time of my decease unto the said nephews and nieces for and during all the term of their natural lives respectively.

"From and immediately after the decease of each of my brothers and sister who shall survive me, to set apart so many further sums of Twenty thousand dollars, as I may leave surviving me, nephews and nieces, children of my said brothers and sister who shall so survive me, and to pay unto each of my said nephews and nieces, the net income and interest of each of the sums of Twenty thousand dollars in quarterly payments, in each and every year from the time of the decease of their father or mother, being my brothers or sister, as aforesaid, for and during all the term of their natural lives respectively."

The foregoing was modified by the following codicil. "Whereas, in and by the fifth clause of my said will, I did give devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, unto my executors thereinafter named, to hold the same In Trust, to collect the rents, interests and income thereof, and after deducting all necessary and proper expenses, inter alia, 'To pay from the said net income unto each of my brothers and sister who shall survive me, an annuity or yearly sum of Six thousand dollars, in quarterly payments, in each and every year from the time of my decease, for and during all the term of their natural lives, respectively; upon the decease of any of my said brothers and sister, the payments of the said annuity, or yearly sum shall cease and end, so far as concerns the one or those so dying.'

"Now I do hereby change alter and amend the above recited and quoted provisions of the fifth clause of my said will in manner following, so that the said provisions shall read as follows: -- 'To pay from the said net income unto each of my brothers and sister who shall...