McConomy's Estate
McConomy's Estate
Opinion of the Court
Opinion by
The intention of the testator at the time of the execution of his will was to make an equal division of the residue of his estate among his children. There is no indication of a change of purpose, but in order that his intention should not be defeated by what had occurred afterward he directed by a codicil that nine hundred dollars should be deducted .from the share of his son H. R. McConomy. The language of the codicil is not clear, but the testator’s intention seems to have been to charge his son’s share with an amount which he had paid on his account. He speaks of giving nine hundred dollars of his son’s share, but names no one to whom it is given; and he says it is to be deducted from his share, the balance to be in full for the otherwise equal share to have been given him. If this was a gift of a portion of the son’s share to the other children, the distribution directed is correct; if it was a deduction in the nature of a charge in order to preserve equality among them, it is not correct. The latter view is in harmony with the testator’s intention to treat his children alike. Without this direction there would have been inequality, as by the codicil the share of H. R. McConomy is given to his wife and children free from liability for his debts, and his indebtedness to the estate could not have been deducted from the share which went to them. The deduction was not for the exclusive benefit of the other children, but in order that their shares should not be reduced by reason of the indebtedness of H. R. McConomy to his father’s estate, and that under the change of beneficiaries provided by the codicil they should all be treated alike. The nine hundred dollars should have been treated as its payment would have been. It would then have been a part of the estate to be distributed among all the children. The plan
The main question in controversy related to the liability of the estate on a bond given by the testator and others to secure the faithful performance of the duties of Ambrose McConomy as trustee under the will of William Whalen. We are of opinion that the conclusion reached by the learned auditor is correct, and that it is sustained by his very full and able report. •
The appellant is'not in a position to raise the question of the qualification of the new trustee, The People’s Trust, Savings and Deposit Company, to act. It is not a matter which concerns him in the least, and it was not called to the attention of the auditor or the court. Before the money is paid by the administrator it should be seen that the appointment is properly made.
The decree of the orphans’ court as modified is affirmed.
Reference
- Full Case Name
- Peter McConomy's Estate. Henry Carpenter's Appeal
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- Will — Gonstruclion of — Distribution—Debt of legatee. Testator by his will directed that the residue of his estate should be •divided into seven equal shares for his seven children. In a codicil he recited that he had given his son Henry R. an equal share of his property, but that owing to change of circumstances he had “ concluded to give a portion of his share, viz: an amount sufficient for a repayment to St. Catharine’s Roman Catholic Church, in Drumore Township, in this county, $710.44 and the additional of $189.56 for the payment of some other of •my debts, making an aggregate sum of nine hundred dollars to be deducted from his share, and the balance remaining of said share to be paid to my daughter-in-law, Mary McConomy, wife of said H. R. McConomy, for the support, maintenance and education of the children and wife of said H. R. McConomy, entirely free from any liability from the debts of said H. R. McConomy. This amount to be in full for the equal share to have been paid the said H. R. McConomy arising from my estate.” Held, that testator’s intention, in order to preserve equality among his children, seems to have been to charge Henry’s share with $900, which testator had paid for him; and as Henry’s share was more than $900, the proper plan of •distribution is to treat the $900 as if paid to the estate, then make an equal distribution among the other six children and Henry’s wife, and deduct -the $900 from her share. Principal and surety — Appointment of trustees — Jurisdiction. Where a trustee appointed by the orphans’ court has given bond, and subsequently squanders the estate, his sureties cannot object, when called upon to make good the loss, that the court had no jurisdiction to appoint their principal trustee over the estate.