Opinion
January 22, 1940.
March 25, 1940.
Wills — Construction — Disposition of remainder — Gift over in the event of prior death of wife.
A will, by which testator directed that, after his debts and certain bequests had been paid, "the balance of my estate shall be put in trust . . ., the income thereof and as much of the principal as necessary to take proper care of my beloved wife . . . if living at the time of my decease," and further provided that in the event that "my wife precedes me in death" the balance of the estate should be distributed as indicated, was, on appeal, construed to be sufficient by fair implication to dispose of the entire estate to the wife.
Argued January 22, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 165, Jan. T., 1939, from decree of O. C. Berks Co., March T., 1938, No. 28, in Estate of Frank M. Dunkelberger, deceased. Decree modified.
Audit of account of executors. Before MARX, P. J.
The opinion of the Supreme Court states the facts.
Adjudication filed awarding balance for distribution to executor of decedent's widow and exceptions thereto dismissed. Next of kin appealed. Errors assigned, among others, related to the dismissal of exceptions to the adjudication.
Samuel E. Bertolet, with him J. W. Bertolet, for appellants.
Geo. B. Balmer, with him Earle I. Koch, for appellee.
So far as concerns the question before us, the will of Frank M. Dunkelberger reads as follows: "Fourth: I order and direct that after all my debts and foregoing bequests are carried out, the balance of my estate shall be put in trust in the First National Bank of Oley, the income thereof and as much of the principal as necessary to take proper care of my beloved wife Sallie Y. Dunkelberger if living at the time of my decease.
"Fifth: In case my wife precedes me in death the balance of my estate shall be sold by my herein named executors and distribution made as follows: One-half of my estate to be divided equally among the following brothers and sisters or their next of kin, Albert M., Ellen Heydt, William M., Lillie Sassaman, Howard M., and Emma Kline; The balance or other one-half of my estate I bequeath to our niece Deborah Sailer, with the understanding that she does her duty in helping to care for my wife during her life."
His wife survived testator for nine months.
The Orphans' Court was of opinion that there was an intestacy and awarded the fund before it to the widow's executor as part of the $5,000 she would be entitled to take because of the intestacy. From this decision the brothers and sisters named in the will appeal, contending that testator's language was effective to dispose of his entire estate, the residue after the widow's death to go to them and his niece.
We conclude that the language was sufficient by fair implication to dispose of the entire estate to the wife: Bosworth's Est., 337 Pa. 265, 11 A.2d 141. It is in the event that she "precedes me in death" that the gifts over take place. As this contingency did not arise, the widow took the residue absolutely.
The decree will be modified by the court below to award the fund to the executor of Sallie Y. Dunkelberger, as this opinion requires. Costs to be paid out of the fund.