Todd's Estate
Todd's Estate
Opinion of the Court
Opinion by
This is an appeal from the decree of the Orphans’ Court of Cumberland County, affirming the report of an auditor appointed to make distribution of the amount in the hands of the executors of the decedent.
Upon the date when the will was made, the testatrix held judgments, notes and other obligations against S. ,W. Haverstick, including liens against real estate owned by him, amounting in all to $7,850. But nearly six months later, on April 15, 1907, Mrs. Todd satisfied of record the judgments and mortgages, and cancelled and surrendered the notes and other obligations held by her against S. W. Haverstick. At the same time Haverstick executed a new agreement, which recited that Mrs. Todd held obligations against him, aggregating $7,850, and that she had agreed to satisfy and cancel all such obligations in consideration of the written promise of Haverstick to pay her annually the sum of $314, being interest on $7,850 at 4 per cent, per annum during her natural life. By a subsequent endorsement on the paper, it was agreed the interest should be paid semi-annually. A little more than nine months later, on January 20,1908, Mrs. Todd made a codicil to her will as follows: “The 14th section of my will I revoke, and in lieu thereof I now give and bequeath to S. W. Haverstick, of Carlisle, Pa., all of the judgments, notes and other obligations against him I may hold at the time of my death, on condition that he pay the interest on all such securities up to the time of my death. In addition to these I hereby give and bequeath to the said S. W. Haverstick such a principal sum of money that shall make the bequest equivalent to a principal sum of twenty thousand dollars. It. is under
It will be noted that the codicil reduced the amount of the beques^ from twenty-five thousand to twenty thousand dollars, and it recited an agreement upon the part of Haverstick to care for and serve the son of the testatrix. The obligation to pay the sum of $314 interest annually, in semi-annual installments, was the only obligation held by the testatrix against Haverstick at the date of the codicil, and at the date of her death, which occurred October 19, 1909.
The auditor appointed by the court below to make distribution held that the amount of Háverstick’s obligations that were in Mrs. Todd’s hands when the original will was made, $7,850, was to be deducted from the legacy of $20,000 given him by the codicil, and, therefore, awarded him $12,150 only. Exceptions filed by Haverstick were dismissed by the court and the report-confirmed. Haverstick has appealed, and the single question raised is whether the auditor and the court below erred in deducting the sum of $7,850 from the legacy left to appellant.
The language of the codicil is clear. It gives to S. W. Haverstick the sum of twenty thousand dollars, less such notes and obligations as the testatrix should hold against him at the time of her death. . Admittedly at that time the only obligation she held was the agreement to pay interest, and that obligation was discharged by payment in full. The legacy was not of the judgments, notes and obligations held by testatrix, when the will was made, but only of such as “I may hold at the time of my death.” As she held none at that time, the legacy was effective for the full amount, unless the surrender and cancellation of the obligations prior to the making of the codicil is to be regarded as an ademption or satisfaction of the legacy to that extent. The presumption
The auditor accepted as a correct statement of the law, the suggestion that a legacy can be . reduced or adeemed only by what occurs subsequent to the making of the will, and not by anything that transpires prior to that date. But he failed to apply the principle to this case. The obligations were surrendered by Mrs.. Todd on April 15, 1907, and as noted above, on January 20, 1908, she executed the codicil to her will which expressly revoked the section of the will containing the legacy to appellant, The codicil substituted a new will in so far as that portion of it was concerned, as she said, “I now give and bequeath to S. W. Haverstick, etc.” By revoking the entire original fourteenth section, instead of merely reducing the amount of the legacy, as she might have done, and by the use of the word “now” the testatrix showed a clear intention that the codicil should speak as of its date. While at that time she held no obligation against appellant, except the agreement to pay interest, yet it was quite possible that new and additional obligations might be created before her death. She had loaned him money before, and she might do so again. We are not able to see any intention upon the
The assignments of error from the second to the eighth inclusive are sustained, and the decree of the Orphans’ Court to the extent herein indicated is reversed. The record is remitted to the court below, that the decree of distribution may be modified accordingly.
Reference
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- Will — Codicil—Construction—Ademption—Legacy. Testatrix by a particular clause in her will gave to her grandnephew to whom she did not stand in loco parentis, “all the judgments, notes and other obligations against him that I may hold at the time of my death on condition that he pay the interest on all such securities up to the time of my death.” She also gave him in the same clause such a principal sum of money that shall make “this bequest” in addition to the securities “equivalent to a principal sum of $25,000.” Six months subsequently the testatrix surrendered to her grandnephew all the obligations which she held against him in consideration of an agreement to pay her the sum of $314 annually during the balance of her life. About nine months thereafter she made a codicil by which she revoked in express terms the clause in her will relating to her nephew, and proceeded by saying “I now give and bequeath” to him “all of the judgments, notes and other obligations against him I may hold at the time of my death, on condition that he pay-the interest on all such securities up to the time of my death.” In addition to these she gave him “such a principal sum of money that shall make the bequest equivalent to a principal sum of $20,000.” Held, that the grandnephew was entitled to receive the full sum of $20,000.