Heppe Estate
Heppe Estate
Opinion of the Court
Opinion by
Margaret Deal Heppe died on February 17, 1968, leaving a will dated June 19, 1964, a codicil dated October 11, 1965, and a second codicil dated November 30, 1967. All were duly probated by the Register of Wills of Montgomery County. The decedent’s will con
The second codicil, drawn more than two years later by a different scrivener, contained a number of gifts to the decedent’s grandchildren and daughters-in-law, an administrative provision, and the following bequest: “Fourth: I give and bequeath to Leonard J. Dunnigan for long and faithful service, if he should survive me the sum of Five Thousand Dollars ($5,000.00).’’
The named legatee, Leonard J. Dunnigan, survived the testatrix and was in her employ as a domestic servant and cook at the time of testatrix’s death. The executor of the estate paid Dunnigan only $5,000. Dunnigan then presented a claim for the additional $5,000 legacy at the audit before the Orphans’ Court Division of the Court of Common Pleas of Montgomery County. That court heard evidence on Dunnigan’s claim, including testimony from the scrivener of the second codicil—to which appellant Dunnigan failed to object— and entered an adjudication on October 22, 1969, that the second codicil was not cumulative but a mere repetition of the language in the first codicil.
Appellant took six exceptions to the adjudication, of which, two concerning the question whether both requests required that the legatee be an employee of the decedent at her death were sustained pro forma. In his opinion sur exceptions on December 9, 1969, the auditing judge noted that only the first bequest to appellant Dunnigan so required. The auditing judge,
The general rule on this subject is stated in Appeal of S. M. Manifold, 126 Pa. 508, 19 Atl. 42 (1889), where this Court, citing 2 Roper on Legacies 999, said: “ ‘When two legacies are bequeathed to the same person by different testamentary instruments, viz.: one by the will and the other by the codicil; or when they are given by different codicils, and the testator has given both of the legacies simplieiter, the court in such cases, in the absence of intrinsic evidence, considers that as the testator has given twice, he must prima facie be intended to mean two gifts; and it seems to be immaterial, whether the legacies are of equal or unequal amounts, or whether they are of the same or different natures.’ ” Id. at 510. See also Sponsor's Appeal, 107 Pa. 95 (1884).
Appellee argues that because the legacies were qualified and not simplieiter, the presumption in favor of cumulative legacies has no application. Such an argument is a misapplication of the general rule quoted above.
Probably the most thorough and scholarly treatment of this particular problem by a Pennsylvania court was in Swain’s Estate, 29 Dist. 361 (Orphans’ Ct., Phila. County 1920). There, Judge Gest, summarized the then present state of the law as follows: “It may, however, be considered as settled (1) that where legacies
Judge Gest then reviewed the history of the law on the subject from its origins in Roman law, through the Middle Ages, and finally its incorporation into and development in English common law. Id. at 364-66. His review led him to conclude that . . where the same motive is assigned by the testator for his gift (Hunter Roman Law (2nd ed.)), 925 (or rather it might be said the same purpose is stated for which the gift is made), the presumption that the legacies are duplicated is rebutted . . . .” Id. at 365. That the converse is also true was indicated by Judge Gest earlier in his opinion when, in distinguishing another case, he observed that if it appears from the language of the codicils that the motives for the bequests are different, this supports a holding that the bequests are cumulative. Id. at 363-64 (distinguishing Ashmead’s Estate, 29 Dist. 128 (Orphans’ Ct., Phila. County 1920)).
To summarize, the presumption of cumulative legacies operates when there is no indication of contrary intent manifest on the face of the separate instruments.
Applying the above analysis to the two codicils involved, the following should be noted. The first codicil has two conditions: (1) that the appellant survive the decedent, and (2) that appellant be in the decedent’s employ at the time of decedent’s death. The second codicil requires only that appellant survive decedent, the reason for the bequest being stated as “for long and faithful service.”
While these two codicils do not make the testatrix’s intent clear beyond doubt, we are persuaded that the two legacies are cumulative. The difference in language between them supports the assumption that the two bequests were given for different reasons, the first to induce appellant to continue in decedent’s employ, and the second to reward appellant for faithful service already performed. These are separable motives, stated separately, and hence the testatrix’s apparent intent to make two different bequests should be effectuated.
The decree of the Orphans’ Court Division of the Court of Common Pleas of Montgomery County is vacated, and the case remanded for further consistent proceedings. Costs to be paid by the estate.
Although the case before Judge Gest turned on the more general question of whether a particular codicil should be substituted for a whole will, and he held the bequests to be repetitious, Swain’s Estate, 29 Dist. 361, 367 (Orphans’ Ct., Phila. County 1920), his analysis, with its emphasis on whether the bequests are given for the same or a different cause, is particularly helpful.
Dissenting Opinion
Dissenting Opinion by
The opinion of the Court concedes that the two codicils before us “do not make the testatrix’s intent clear beyond doubt”. I quite agree. Accepting as a guideline, however, as does the majority, Judge Gest’s opinion in Swain’s Estate, I reach the conclusion that the two bequests to appellant are not cumulative. Judge Gest said (29 Pa. Dist. 361 at 365) that “. . . where the same motive is assigned by the testator for his gift . . . the presumption that the legacies are duplicated [i.e., cumulative] is rebutted.” As I read the bequests to appellant Dunnigan, the motive behind each was the same, viz., recognition of his fidelity as an em
It is true that the first bequest is conditional on appellant being in the employ of testatrix at the time of her death, while the second bequest is not so conditioned. I disagree that this difference indicates a different motivation for the gifts. The absence of the condition in the second codicil merely denotes that the testatrix was then desirous that appellant should have the gift outright, employed by her or not. I cannot on this account construe it as differently motivated than the first, but only as a more liberal or generous substitute.
The second codicil was written by a different lawyer than the first. It is not labelled “Second Codicil”, nowhere refers to the first codicil, and gives no sign that the existence of the first codicil was known to the scrivener or remembered by the testatrix. Indeed, the scrivener testified, without objection, that he was totally unaware of the existence of the first codicil and that the testatrix had supplied him only with a copy of her will as constituting her testamentary writings.
I agree with that part of the Court’s opinion which holds that the auditing judge was correct in ruling inadmissible appellant’s testimony as to statements allegedly made to him by the testatrix, and there is therefore no need to repeat the reasons for the holding.
I would affirm the decision of the court below.
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