Fetter Estate

• Decision Date: 02 March 1943
• Docket Number: 155,157,154,150,159,160,158,156,161-1942
• Citation: 30 A.2d 647,152 Pa.Super. 10
• Parties: Fetter Estate
• Court: Pennsylvania Superior Court

30 A.2d 647

152 Pa.Super. 10

Fetter Estate

Nos. 150, 154, 155, 156, 157, 158, 159, 160, 161-1942

Superior Court of Pennsylvania

March 2, 1943

Argued October 5, 1942.

Appeals from decree of O. C. Phila. Co., July T., 1910, No 240, in Estate of George W. Fetter, deceased.

Audit of account of trustee. Before Klein, J.

Exceptions by residuary devisees to adjudication dismissed, before Stearne, acting P. J., Sinkler, Klein, Bolger and Ladner JJ., opinion by Ladner, J. Exceptants appealed.

Decree affirmed.

Joseph A. Allen, for appellants.

Joseph P. Gaffney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Rhodes, J.

The question for decision is whether a legacy to the City of Philadelphia under the last will and testament of George W. Fetter, who died in 1909, is charged upon the real estate of the testator.

The personal estate was insufficient to pay the legacy. The balance of the personal estate and the proceeds of the real estate sold were awarded to the City, Acting by the Board of Directors of City Trusts. Exceptions to the adjudication by the nephews and nieces of the testator were dismissed by the court in banc; a schedule of distribution was filed in accordance with the adjudication and approved. Exceptants have appealed.

The will, after providing for conduct of testator's funeral, payment of his debts, disposition of his household furniture, and the use for life of his homestead by his widow, reads as follows:

"FIFTH: -- I direct, that all my real estate and personal property shall remain invested, as at my decease, excepting such money as may be needed, to carry out the conditions of my will, and for these purposes, such money shall be obtained by the sale of stocks or bonds, belonging to the estate. I direct that the net produce of my personal estate, be divided as follows: --

"First: -- I give and bequeath unto the Medico Chirurgical Hospital, of the City of Philadelphia, the sum of five thousand dollars, for the endowment of a free bed, in the room named after my deceased wife, Mary A. Fetter.

"Second: -- I give and bequeath unto my faithful servant, Catharine Cooke, the sum of one thousand dollars, in cash, to be paid to her, by my executrix, in settlement of my estate.

"Third: -- I give and bequeath unto my beloved wife, Salome, the entire income, of the balance of my real and personal estate, during her natural life, and at her death,

"First: -- I give and bequeath unto the City of Philadelphia, the sum of fifty thousand dollars, in trust, to invest the same, and to collect the income thereof, and expend it in the purchase of scholarships, in the higher institutions of learning, for such poor young women, of the City of Philadelphia, as may in the judgment of the Board of City Trusts, be most worthy of the benefit.

"Second: All the residue, and the remainder of my entire estate, real, personal or mixed, I give devise and bequeath unto my nieces, Charlotte T. Brinsley, Sarah C. Gainor, Josephine A. Gunser, Elizabeth C. Phlon, Melissa Barcalow, and my nephew, Samuel W. Dyer, share and share alike. If any of my said nieces or nephews shall not survive, then I direct the share of such niece or nephew, shall go to her or his children, and if such niece or nephew shall have no children, those surviving or living at this time, shall receive the share of such niece or nephew divided among them, share and share alike."

After the death of testator's widow, in 1941, her account as trustee, stated by her executor, showed a balance of $ 35,409.18. Some of this fund represented the proceeds of sale of two parcels of real estate, 4202-4204 Girard Avenue, Philadelphia, owned by the testator at the time of his death, and sold under the Revised Price Act of 1917, P. L. 388, as amended, 20 PS § 1561 et seq. The City of Philadelphia claimed the entire balance on account of its legacy; testator's nephews and nieces claimed the portion of the fund derived from the sale of the real estate on the ground that the legacy to the city, by the language of the fifth paragraph of the will, was intended by the testator to be paid only from his personal estate.

The court below took the view that in the paragraph of the will just preceding the legacy to the city there occurred a blending of the real and personal estate into a general devise for the purpose of paying the income therefrom to the testator's widow for life. This construction of the will was held to satisfy the requirement of the law previous to the enactment of section 17 of the Wills Act of 1917, 20 PS § 241, that only by express words or necessary implication could a legacy be made a charge upon real estate not specifically devised.

Appellants contend that the legacy to the city is subject to the direction of the fifth paragraph that "to carry out the conditions of my will . . . . money shall be obtained by the sale of stocks or bonds," and that "the net produce of my personal estate, be divided as follows:" It is argued in support of this contention that the testator's intention as to the source of payment of the legacy to the city is to be determined entirely by reference to the fifth paragraph, and not at all from the immediately preceding sub-paragraph, which combines realty and personalty in a single trust fund to give the widow an income for life, and which appellants consider a mere interpolation in a series of three pecuniary bequests.

We are of the opinion that the court below has reached the correct result, and that the portion of the fund derived from sale of the two parcels of real estate was properly applied to the payment of the legacy to the city.

It has frequently been said that "no will has a brother" (Bumm's Estate, 306 Pa. 269, 272, 159 A. 15), and that precedents are of little value in the construction of wills (Jackson's Estate, 337 Pa. 561, 570, 12 A.2d 338).

The present will appears, upon careful reading, to exhibit a clear and simple plan, although it may not be embodied in orthodox form. It manifests an intelligible testamentary intent. From the beginning of the fifth paragraph to the end of the will, the testator apparently contemplated the bulk of his estate, real and personal, as a whole, with certain specific exceptions at specific future times, and, subject to these exceptions, directed various dispositions of the corpus of the estate at those times. He first directs that it remain as invested at his death, except for the funds required to pay debts and expenses and the two pecuniary legacies which were immediately payable. For these purposes his personalty could be sold. The income of the entire balance is then given to his widow for life. Upon her death the legacy to the city becomes payable; thereafter what remains passes to his residuary legatees and devisees.

We think a testator may visualize the remainder of his estate at more than one future time, and make one or several interim dispositions of it previous to a final gift. A testamentary scheme which includes postponed gifts out of either income or principal of a gross estate might be difficult of expression without use of the concept of the residue of the estate as varying in amount and composition at various points of time in the plan. For example, in Carson's Estate, 130 Pa.Super. 133, 196 A. 527 the testator left his...