Dublin's Estate, In re
| Decision Date | 04 January 1954 |
| Citation | 375 Pa. 599,101 A.2d 731 |
| Parties | In re DUBLIN'S ESTATE. Appeal of DUBLIN et al. |
| Court | Pennsylvania Supreme Court |
Elder W. Marshall, Harry A. Estep, Carl E. Glock, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, for appellants.
William H. Eckert, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, for appellee.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
The question in this case is whether a devise of real estate was adeemed by an agreement of sale of the devised property which the testatrix entered into subsequent to the execution of her will. The learned court below, one judge dissenting, held that the agreement did not work an ademption. With that, we agree.
The testatrix' sister and brother (the latter, now deceased, represented by his executor), as the named legatees of the testatrix' personal estate, have appealed, taking a joint appeal, however, in the name of the sister and the brother's executor. Since their interests are several, a joint appeal was not proper. But, the appeal was taken timely and we shall, under our practice, In re Taylor's Estate, 277 Pa. 518, 522-523, 121 A. 310, 37 A.L.R. 553, enter a non pros as to the appellant fiduciary of the deceased brother and proceed to a disposition of the appeal on its merits as the appeal of the sister alone with an appropriate division of the costs between them. In the circumstances present, this course does not militate against the brother's estate and it does make appellate review of the lower court's decree possible.
The testatrix, Mildred Dublin, a resident of Pittsburgh, died unmarried, leaving to survive her a sister, Marjorie C. Dublin (with whom she lived), and a brother, Alfred S. Dublin. By her will she disposed of her estate as follows: By paragraph 1 she directed payment of her debts; by paragraph 2 she gave her clothing and furnishings to her sister; by paragraph 3 she directed that all of her personal property (other than that disposed of in paragraph 2) be sold and the proceeds, together with any other moneys belonging to her at her decease, divided equally between her brother and sister or the survivor of them; (paragraph 4 we shall pass for the moment); by paragraph 5 she directed that certain yearly payments, amounting to $12,000 per annum, which she was receiving under a settlement agreement with the estate of one John W. Hubbard, deceased, be paid to her attorney, Jason Richardson; and by paragraph 6 she appointed her executors. The bequest to her attorney under paragraph 5, she later revoked by a holographic codicil wherein she named her brother and sister as the legatees of that fund.
The controversy revolves about the meaning of paragraph 4 of the will which reads as follows: 'The real estate I own in Atlantic City which is under agreement of sale, I give, devise and bequeath unto my sister, Marjorie C. Dublin, my brother, Alfred S. Dublin and Jason Richardson, Esquire, or the survivor of them.' All three survived the testatrix, although the brother and Mr. Richardson have since died and their interests are represented on the record by their respective personal representatives. The will was drawn by Thomas E. Whitten, Esq., of the Allegheny County bar, from instructions given him by the testatrix, contained for the most part on typewritten sheets of flimsy paper which she had handed to Mr. Whitten. She executed the will in his office on February 20, 1948.
The testatrix owned but a single piece of real estate in Atlantic City which she had purchased in 1940. In 1945 which she had property to one Joseph E. Kaufman who purported to be acting for a corporation yet to be formed. The lease was for a term of 99 years and included an option in the lessee to purchase the demised premises for $175,000 in the period between January 1, 1949, and January 1, 1969. On April 18, 1949, which was approximately 14 months after the execution of the will, the testatrix contracted to sell her Atlantic City property to one Samuel Bobbins, or his nominee, for $125,000, subject, however, to the existing 99-year lease to Kaufman. The agreement of sale to Bobbins called for closing on or before June 30, 1949, but closing did not take place. Bobbins defaulted. Shortly thereafter, viz., July 22, 1949, the testatrix died; and, on August 9, 1949, her will and codicil were probated before the Register of Wills for Allegheny County, and letters testamentary were granted to the executors named in the will.
On April 14, 1950, the real estate was sold by the testatrix' personal representatives to the Mayfair Apartments, Inc., the nominee of Bobbins, for $100,000. In making this sale, the testatrix's executors acted pursuant to a decree, which they had sought, of the Probate Division of the Atlantic County Court of New Jersey which authorized them to carry out the Bobbins agreement at the reduced price. The reduction in the purchase price, having been consented to in advance by the several devisees of the property, received the approval of the New Jersey Probate Court. As the record plainly reveals, Bobbins was acting throughout for Kaufman, the lessee and optionee under the 99-year lease.
The executrix of Rhchardson's estate contends that the devise under paragraph 4 of the Dublin will was not adeemed and that his estate is, therefore, entitled to one-third of the proceeds resulting from the sale of the Atlantic City property. On the other hand, the sister of the testatrix and the personal representative of her deceased brother contend that the executory contract of sale, entered into by the testatrix with Bobbins on April 18, 1949, worked an equitable conversion of the realty and that, consequently, the specific devise was adeemed. Wherefore, they assert that they alone are entitled to the proceeds of the sale as personalty under paragraph 3 of the will.
The law applicable to the question involved is that of New Jersey, the lex loci rei sitae. * * * [I]t is a principle of private, international law, fortified by a great mass of authority, that all questions relating to the transfer of title to land wherever arising will be governed by the laws of the place where the land is situated. Donaldson v. Phillips, 18 Pa. 170; [In re] Lawrence's Estate, 136 Pa. 354, 20 A. 521, 11 L.R.A. 85; Bingham's Appeal, 64 Pa. 345'. Wolfe v. Lewisburg Trust & Safe Deposit Co., 305 Pa. 583, 589, 158 A. 567, 568, 81 A.L.R. 660. This principle is applicable to questions relating to the effect of language in wills of testators not domiciled in the dominant situs. See In re Koehler Partition Case, 360 Pa. 460, 463, 61 A.2d 870, 871, where we quoted from Restatement, Conflict of Laws, § 249, comment (c), to the effect that a 'will of an interest in land is governed by the law of the state where the land is in spite of a direction in the will to convert the land into personalty.' Specifically, whether the sale of devised land operates as an ademption is governed by the law of the situs. Phillips v. Phillips, 213 Ala. 27, 29, 104 So. 234. See, also, Goodrich, Conflict of Laws, § 166, p. 508 (3d Ed.); 4 Page, Wills, § 1653, p. 733 (3d Ed.).
The law of New Jersey on the subject of ademption is not entirely harmonious. In Riddle v. Brooks, 115 N.J.Eq. 1, 169 A. 512, upon which the court below in the instant case laid stress, it was held that an executory contract of sale of specifically devised property did not operate as an ademption. On the other hand, in Righter v. First Reformed Church of Boonton, 17 N.J.Super. 407, 86 A.2d 305, upon which the dissenting judge below relied and quoted from in full, a devise was held to have been adeemed where the testatrix entered into an inter vivos contract to sell the devised property. The Riddle case has never since been cited; and there was apparently no contention made in the Righter case that the testatrix had not intended an ademption by the contract of sale. We think the law of New Jersey is best expressed in Donath v. Shaw, 132 N.J.Eq. 545, 549, 552, 29 A.2d 555, 558, where Vice Chancellor Berry, after reviewing the whole subject of ademption, declared,-- The same rule has been applied in In re Armour's Estate, 17 N.J.Super. 523, 530, 86 A.2d 454,...
To continue reading
Request your trial