McFerren Estate
McFerren Estate
Opinion of the Court
Opinion by
Eight appeals have been taken from a definitive decree of distribution of a decedent’s estate by the Orphans’ Court of Allegheny County. All relate to ademption and lapse of legacies.
Before considering the various appeals the general principles of law relating to this subject matter must be examined. An ademption occurs where a legacy is specific and the thing bequeathed is disposed of by testator in his lifetime. There is no ademption, however, where the legacy is general. A legacy lapses because of the death of the legatee in the lifetime of testator, except where prevented by statute. This is in the absence of an express or implied intent of testator to the contrary. A specific legacy has been defined as a gift by will of a specific article or part of testator’s estate,
A legacy is presumed to be general rather than specific: Blackstone v. Blackstone, 3 Watts 335; Ludlam’s Estate, 13 Pa. 187; Balliet’s Appeal, 14 Pa. 451; Ferreck’s Estate, 241 Pa. 340, 88 A. 505; Lenhart’s Estate, 344 Pa. 358, 25 A. 2d 725; Estate of James McGaw, Deceased, 85 Pa. Superior Ct. 545; Connolly Estate, 166 Pa. Superior Ct. 383, 71 A. 2d 856.
A legacy lapses when the legatee dies in the lifetime of testator: Comfort v. Mather, 2 W. & S. 450; Berger Estate, 360 Pa. 366, 371, 61 A. 2d 855. But a devise or legacy in favor of a child or lineal descendant of testator does not lapse where such devisee or legatee leaves issue surviving: Sec. 15 (a) Act of June 7, 1917 P. L. 403, 20 PS 251. Where testator leaves no lineal descendants who would receive the benefit of lapsed or void devises or legacies, no devise or legacy in favor of a brother or sister or their children lapses if such de
Appeals Nos. 140, 141 and 142 are by Ruth McFerren Roof, Virginia Ulrich and Mildred McFerren, respectively, three of the residuary legatees. The appeals are identical. By item 18 of the will testatrix bequeathed to Rose Reynolds “one $5000.00 4% Treasury Note.” A similar legacy was given to Corinne Reynolds by item 19. In item 21 Edward H. Walters was bequeathed (a) “One $1000.00 4% Treasury Note . . . and (c) Thirty (30) Shares Armour & Company 7% Preferred Stock.”
According to the stipulation of facts, at the date of testatrix’s death “. . . there were no 4% United States Treasury Bonds outstanding nor have any been issued since that date.” All the 7% cumulative guaranteed preferred stock of Armour and Company, owned by testatrix, had been redeemed by the corporation and no such stock was outstanding at date of death nor have any securities of like description been issued since. Appellants earnestly contend that the legacies, even though general, adeemed because there is no recognizable res or thing upon which the words of the gift can fasten. There is no merit in this contention. In the case of a general legacy of stocks or bonds, where there are none owned by testator at death, the legatee may elect to take the value in cash or have the executor purchase them, for Mm: Sponsler’s Appeal, 107 Pa. 95; Snyder’s Estate, 217 Pa. 71, 66 A. 157; Estate of James McGaw, Deceased, 85 Pa. Superior Ct. 545. In Sponsler’s Appeal, supra, 30 shares of railroad stock were bequeathed by a general legacy. At the death testator had but 15 shares. The 15 shares were awarded to the legatee and also “the cash value of fifteen additional shares.” It is argued by appellants that in the cited cases the executor could have gone into the market and purchased the same kind of stock, and hence was able to estab
Appeals Nos. 144 and 145 are by Edna Reynolds Mc-Caulley and Edward H. Walters. The former was bequeathed “Fifty (50) Shares Cheseborough Manufacturing Company Common Stock” by item 20 of the will, while the latter received a similar bequest under item 21.
Testatrix at the time of the execution of her will was the owner of the 100 such shares but between that date and the date of her death exchanged the 100 shares of the par value of $25 for 250 shares of the same company of the par of $10. This was because of the corporation’s revision of its capitalization merely by way of a “split up”. It authorized and issued 2% shares of new common stock for each share of old common stock. Testatrix thereafter held 250 shares @ $10.00 par a share in lieu of her former holding of 100 shares @ $25.00 par a share. No new capital was added and no new shares were purchased. The value of the investment in the corporation remained unchanged. The legacies are conceded to be general and not specific.
The court below ruled that because a will is construed to speak and take effect as if executed immediately before the death “. . . unless a contrary intention shall appear by the will”, (Sec. 9 of Wills Act of June
Appeals Nos. 144 and 145 are sustained and decree reversed, with direction to modify awards in accordance with this opinion, the costs to be paid out of the principal of.the estate.
Appeals Nos. 188, 189 and 190 relate to questions of lapsed legacies. Testatrix by her will bequeathed legacies to fifteen nieces, nephews, grand niece, grand nephew and cousins of herself and her deceased husband. The residue is bequeathed to 8 of the 15 legatees, with no distinction made between her relatives and those of her husband. Of the four legacies where a lapse is directed, two of the legatees were nieces or
It would be merely a matter of conjecture to attempt to seek the reason for testatrix’s provisions concerning lapses. To surmise, because of testamentary provisions as to lapses in four legacies, testatrix intended that the other eleven legacies should not lapse is not tenable. As Mr. Justice Jones said in Farmers Trust Company, Executor, v. Wilson et ux.; 361 Pa. 43, 46, 63 A. 2d 14: “In Weidman’s Appeal, 2 Walker 359, 361, 42 Leg. Int. 338 (1885), Mr. Justice Trunkey quoted with approval for this court to the effect that ‘The question in expounding a will is not what the testator meant, but what is the meaning of his words.’ That pronouncement has since been reiterated by the courts of this State many times without question down to the present: e. g., Myers Estate, 351 Pa. 472, 474, 41 A. 2d 570; Rosengarten Estate, 349 Pa. 32, 38, 36 A. 2d 310; Brock Estate, 156 Pa. Superior Ct. 616, 619, 41 A. 2d 347; Tombs Estate, 155 Pa. Superior Ct. 605, 609, 39 A. 2d 367; etc. The principle, of course, does not mean that, where a testator’s intention is clear, it may be disregarded on the basis of a literal interpretation of his testamentary words. But, it does mean that a testator’s intent is not to be arrived at by the expounder’s subjective deductions as to what the testator might have meant, or even perhaps did mean, but did not say: cf. Ludwick’s Estate, 269 Pa. 365, 371, 112 A.
Appeals Nos. 188, 189 and 190 are dismissed at the cost of appellants.
The definitive decree of distribution, as modified, is affirmed. Costs to be paid in the respective appeals as herein directed.
Dissenting Opinion
dissents in Appeals Nos. 140, 141 and 142, being of opinion that, since the securities there involved were wholly out of existence at the time of testatrix’s death and no others of their kind then existed, the legacies were adeemed.
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