Opinion
April 22, 1957.
May 27, 1957.
Wills — Construction — Intention of testator — Devise of real estate — Scope of estate.
Where testator's holographic will provided "At the conclusion of my life my property, moveable and unmoveable, shall go over into the name of my son Frank" and then described certain real estate and provided ". . . therefrom Frank shall pay my son Samuel four thousand dollars and my daughter Johanna four thousand dollars" and further provided "The property shall not be sold as long as Frank Duld lives. Should he die childless then it is to revert to brother and sister, if they do not live to their children. If Frank's wife should out live him she shall have a right to one-third.", it was Held that (1) the controlling intention of the testator as determined from a consideration of the entire will was to limit the gift to Frank to a smaller estate than the first two sentences in his will standing alone would indicate, rather than an attempt on testator's part after giving an absolute estate to take away from it some of its inherent attributes; and (2) upon the death of Frank without children, one-third of the real estate vested in his widow and the other two-thirds vested in testator's daughter Johanna and in the children of testator's son Samuel, the latter having died prior to Frank.
Before JONES, C. J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
Appeals, Nos. 161 and 167, Jan. T., 1957, from decree of Orphans' Court of Lehigh County, File No. 31384, in re estate of Mathias Duld, deceased. Decree affirmed.
Same case in court below: 8 Pa. D. C.2d 330.
Proceeding upon petition of claimant for inquest in partition. Before GEARHART, P. J.
Adjudication filed awarding inquest in partition of real estate; exceptions of petitioners and respondent dismissed and final decree entered. Petitioners and respondent, respectively, appealed.
William S. Hudders, with him Butz, Hudders, Tallman Rupp, for petitioners (appellants in No. 167).
Donald L. LaBarre, with him Harold W. Helfrich and James L. Weirbach, for respondent (appellant in No. 161).
Decree affirmed on the opinion of Judge GEARHART, dated and filed June 19, 1956, reported in 8 Pa. D. C.2d 330; costs to be paid by the estate.