Raymond Moore Remick.

The statutory law of decedents' estates in Pennsylvania, with annotations and forms online

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The Act of 1879 "was enacted to complete what had only been par-
tially effected by the Act of 1833." Opinion of Clark, J., in Fidelity Ins. T.
& S. D. Co.'s Appeal, 108 Pa. 492, 499. See also, Williams v. Brice, 201
Pa. 595, 597-

Under the Act of June 4, 1879, P. L. 88 and this section of the Wills
Act, the general rule is that a will speaks from the death of the testator,
and legacies are to be satisfied out of the property which he owns at that
time. This rule does not apply where a contrary intention appears by
the will, as, for example, where the testator is the owner of a particular
thing at the time of the making of his will, and bequeaths it by language
which shows that he intends the gift to apply alone to the particular thing.
The legacy is then called "specific" and where, prior to his death, the
testator has disposed of the subject matter, the legacy is adeemed and
nothing passes under the gift. Thus, where testator, at the time of the
execution of his will, was the owner of a yacht, which he bequeathed as
follows : "I give and bequeath unto my nephew, my yacht, with all its
furnishings," and subsequently he sold the yacht, and later puchased a
one-third interest in another yacht, which he owned at the time of his
death, it was held, that the language of the will clearly applied to the yacht
which the testator owned at the time of the execution of the will, and,
having disposed of it before his death, the legacy was adeemed. Annear's
Est., 29 Dist. 44.

228. AFTER ACQUIRED REAL ESTATE TO PASS BY

GENERAL DEVISE.

SECTION 10. The real estate acquired by a testator after mak-
ing his will shall pass by a general devise, unless a contrary inten-
tion be manifest on the face of the will.

NOTE. This is Section 10 of the Act of 1833, 4 Purd. 5139, which is
similar to Section 23 of the Statute of 7 William IV and I Viet, Chapter
26. It has been retained, although it might be considered unnecessary in
view of the broader provisions of the Act of 1879, embodied in the last
preceding section.



140 WILLS ACT SECTION 11

229. GENERAL DEVISE OR BEQUEST TO OPERATE
AS EXECUTION OF GENERAL POWER OF
APPOINTMENT.

SECTION ii. A general devise of the real estate of the testator,
or of the real estate of the testator in any place or in the occupa-
tion of any person mentioned in his will, or otherwise described
in a general manner, shall be construed to include any real estate,
or any real estate to which such description shall extend, as the
case may be, which he may have power to appoint in any manner
he may think proper, and shall operate as an execution of such
power, unless a contrary intention shall appear by the will. In
like manner a bequest of the personal estate of the testator, or
any bequest of personal property described in a general manner,
shall be construed to include any personal estate or any personal
estate to which such description shall extend, as the case may be,
which he may have power to appoint in any manner he may think
proper, and shall operate as an execution of such power, unless
a contrary intention shall appear by the will.

NOTE. This is Section 3 of the Act of 1879, 4 Purd. 5145-6. See the
note to section 9 of the present draft.

Section 4 of the Act of 1879, 4 Purd. 5146, provides: "This act shall
operate upon and go into effect as to the wills of all persons who shall
die after the date of this act." This is covered by the general section of
the present act fixing the time when the act shall go into effect (See
252 infra.)

Under a will where one had a general power of appointment and it
was held that he could appoint to certain persons or classes of persons in
such shares as another person might nominate, the court dismissed ex-
ceptions to an adjudication by Gest, J., wherein he said:

"The power conferred by the will of Sarah Ann Duffy upon Rosalie
Gertrude Wilson was a general power to appoint this property by her will
to such person or persons and for such estate or estates as she should direct,
limit and appoint, and, of course had Rosalie Gertrude Wilson designated
certain hospitals by name as the beneficiaries, there could be no question
that the power was validily exercised. A general power such as this
approaches so near to absolute ownership that she might have appointed
the estate to her executor to be disposed of as part of her own, and
if she had failed to exercise the power specifically it would neverthe-
less, have been executed by force of the Wills Act of June 7, 1917, Sec-
tion n, P. L. 403, which re-enacted the Act of June 4, 1879, Section 3,
(P. L. 88) n, Duffy's Est., 49 Pa. C. C. 30, 29 Dist. 379.

The auditing judge (Gest, J.) said in his adjudication:

"Amelia R. Sparks died on November 2, 1914, leaving a will by the
tenth paragraph of which she bequeathed to her trustees premises No. 21



WILLS ACT SECTIONS 11-12 141

Wood Street, Camden, N. J., forty shares of North Pennsylvania Railroad
stock, five shares of Philadelphia Traction Company, and a $1,000 bond of
the Delaware and Bound Brook Railroad, in trust to pay the net income
therefrom to her son, Edward K. Sparks, for the term of his natural life,
and from and after his decease, to pay over, assign, and transfer the
principal in such way and manner as he may by last will and testament
direct, limit and appoint, or in default of appointment, to those who would
be entitled to the same if he had died seized and possessed of the same
intestate.

"And by the seventeenth paragraph of her will she provided as follows:
'I order and direct that all devises and bequests and all payments of
income herein given shall, to the fullest extent permitted by the law, be
transferred or paid free and clear of the debts, contracts, engagements,
alienations and anticipations of any beneficiary, and free and clear of all
levies, attachments, executions and sequestrations.'

"The account is filed of the stocks and bonds so bequeathed and awarded
to the accountants by the adjudication of Anderson, J., on November 23,
1916, and schedule thereon, and is filed by reason of the death of Edward
K. Sparks on December 10, 1920, so that the trust then terminated.

"Edward K. Sparks left him surviving a widow, Julia M. Sparks and a

will dated November , 1916, of which she is executrix and by which

he provided : 'I direct that all my just debts and funeral expenses be paid
as soon as conveniently may be after my decease.

" 'I give, devise and bequeath all of my estate, real and personal, unto
my wife, Julia M. Sparks, absolutely, if she shall survive me, otherwise,
I give and devise the same to my son, Charles Aplin Sparks.'

"The question presented is whether, under the will of Edward K.
Sparks, executing the power of appointment given to him, the award of
the principal of the trust estate should be made to Julia M. Sparks in-
dividually as the object of the power, or whether it should be made to
Julia M. Sparks as executrix of the will of Edward K. Sparks."

And LAMORELLE, P. J., in dismissing exceptions, held inter alia :

"The three exceptions raise but one question : the propriety of awarding
the appointed estate to the executrix of the will of the donee."

"In the present case the donee's exercise of the power is by virtue of
Section u of the Wills Act of June 7, 1917, P. L. 415 (which repealed
the Act of June 4, 1879, P. L. 88), in a will where, following a general
direction to pay his debts, he left his estate to his wife.

"We cannot distinguish the cases, and, therefore, the exceptions are
dismissed, without prejudice, however, to the rights of all parties in
interest which are to be determined in manner and form as hereinbefore
set forth." Spark's Est., 30 Dist. 815.

230. DEVISES OF REAL ESTATE TO PASS WHOLE
ESTATE OF TESTATOR.

SECTION 12. All devises of real estate shall pass the whole
estate of the testator in the premises devised, although there be



142 WILLS ACT SECTIONS 12-13-14

no words of inheritance or of perpetuity, unless it appear by a
devise over, or by words of limitation, or otherwise, in the will,
that the testator intended to devise a less estate.

NOTE. This is Section 9 of the Act of 1833, 4 Purd. 5137-8. Before
that Act, a devise did not carry a fee unless there were words of inherit-
ance or other language showing an intention that a fee should pass. The
Commissioners in 1832 reported that this section coincided with the im-
provement made in this respect in many other states.
t.

See Rosenfield v. Wahal, 48 Pa. C. C. 362.

231. DEVISE OF REAL ESTATE IN FEE TAIL TO

BE CONSTRUED AS ESTATE IN FEE
SIMPLE.

SECTON 13. Whenever by any devise an estate in fee tail would
be created according to the common law of this state, such devise
shall be taken and construed to pass an estate in fee simple, and as
such shall be inheritable and freely alienable.

NOTE. This is Section i of the Act of April 27, 1855, P. L. 368, 2 Purd.
1485, altered so as to apply to wills only. The Act of 1855 should not be
repealed so far as it relates to deeds.

232. CONSTRUCTION OF "DIE WITHOUT ISSUE"

AND SIMILAR PHRASES.

SECTION. 14. In any devise or bequest of real or personal es-
tate, the words, "die without issue," or "die without leaving issue,"
or "have no issue," or any other words which may import either
a want or failure of issue of any person in his lifetime, or at the
time of his death, or an indefinite failure of his issue, shall be
construed to mean a want or failure of issue in the lifetime or at
the death of such person, and not an indefinite failure of his issue,
unless a contrary intention shall appear by the will in which such
devise or bequest is made.

NOTE. This is Section i of the Act of July 9, 1897, P. L. 213, 4 Purd.
5146-8, altered so as to apply to devises and bequests only. The Act of
1897, so far as it relates to gifts and grants, is not to be repealed. Section
2 of that act, limiting its application to instruments made after its passage,
is covered by Section 26 of the new act. (See 252 infra.)

See English's Est, 270 Pa. i, 112 Atl. 913.

"A careful reading of this act will at once disclose that it gave a statu-
tory meaning to such words as 'die without issue* or 'die without leaving
issue' or any words which may import either a want or failure of issue



WILLS ACT SECTIONS 14-15 (a) 143

of any person in his lifetime or at the time of his death, or an indefinite
failure of his issue, and that they shall be construed to mean a want or
failure of issue in the lifetime or at the death of the taker, and not an
indefinite failure of his issue, unless a contrary intention appear from the
will. The statute has reference only to these two possible constructions
of such words, viz : a failure of issue at the death of the taker or an
indefinite failure, of his (the taker's) issue and has no reference to words
which may imply a definite failure of issue either in the lifetime of the
testator or at the death of the taker, the law of construction in the latter
case has not been changed by this statute, and remains as it was before
this act of assembly was passed." Fox, J., in Segelbaum's Est, 24 Dauphin
274.

233. LAPSED AND VOID DEVISES AND LEGACIES
DEVISE OR LEGACY IN FAVOR OF LINEAL
DESCENDANTS NOT TO LAPSE BY DEATH.

SECTION 15. (a) No devise or legacy in favor of a child or
children, or other lineal descendant or descendants of any testator,
whether such children or descendants be designated by name or
as a class, shall lapse or become void by reason of the decease of
such legatee or devisee in the lifetime of the testator, if such de-
visee or legatee shall leave issue surviving the testator ; but such
devise or legacy shall be good and available in favor of such sur-
viving issue, with like effect as if such devisee or legatee had sur-
vived the testator, unless the testator shall in the will direct other-
wise.

NOTE. This is Section 12 of the Act of April 8, 1833, P. L. 250, 4 Purd.
5142, which was founded on the Act of March 19, 1810, P. L. 96, 5 Sm. L.
112, modified so as to conform to the phraseology of the clause next
following.

Section 12 of the Act of 1833 has been judicially construed to include
legacies to children or grandchildren as a class, the principle of Gross's
Estate, 10 Pa. 360, not having been applied to this section; see Bradley's
Estate, 166 Pa. 300. The phraseology, however, has been changed by way
of precaution in order to prevent any question upon the subject.

An adopted child of a son of testator was held entitled to distribution
under the Wills Act of 1917, where the son died subsequent to the execu-
tion of the will, but prior to testator's death. The will provided : "All
the rest and residue of my estate, of whatsoever nature and wheresoever
situate, at the time of my decease, I give, devise and bequeath to my be-
loved children who are living at the date hereof, their heirs and assigns,
share and share alike. The child or children of any of my children now
living, but who die before me, to receive the share or portion, its or their
parents would have received had he or she been living at the time of my
death." "Issue," in Section 15 (a) and "child or children" in Section



144 WILLS ACT SECTION 15 (a), (fr)

16 (fr) of the Wills Act of 1917 are necessarily synonymous in the re-
stricted sense that their rights of inheritance are the same, and all that
is required by the latter subsection is that "child or children shall be con-
strued to include adopted children." This construction is necessary to
carry into effect the clearly expressed legislative intent. Hill's Estate, 69
P. L. J. 177, 30 Dist. 477, s. c. 69 P. L. J. 348.

Testator left a will directing that this estate should be "equally divided
among my children, their heirs and assigns," A son died before the tes-
tator leaving issue and a widow. Held, that the widow could not par-
ticipate because not embraced within the words "heirs and assigns," which
are words of limitation. Schaeffer, P. J., said: "By no authority known
to the court have 'heirs and assigns' as here used, been construed as
words of substitution and thus to embrace a widow as an heir. They
are here used merely as words of limitation they limit an absolute estate
to children. As such, consequently, they preclude the widow's coming in
on the legacy by substitution ; and since the Wills Act of 1917, which
saves the legacy from lapsing, restricts distribution of it to this son's
issue, the court sees no way by which this widow can participate. For
these reasons she will not be included in the distribution." Wagenhorst's
Estate, 12 Berks 89.

See Gamier v. Gamier, 16 North 205; Moore's Est., 30 Dist. 152, 68
P. L. J. 670, 15 Del. 367.

234. DEVISE OR LEGACY IN FAVOR OF BROTHERS
AND SISTERS AND THEIR CHILDREN NOT
TO LAPSE BY DEATH, IN CERTAIN CASES.

(&) Where any testator shall not leave any lineal descendants
who would receive the benefit of any lapsed or void devise or
legacy, no devise or legacy made in favor of a brother or sister,
or of brothers or sisters of such testator, or in favor of the chil-
dren of a brother or sister of such testator, whether such brothers
or sisters or children of brothers or sisters be designated by name
or as a class, shall be deemed or held to lapse, or become void by
reason of the decease of such devisee or legatee in the lifetime of
the testator, if such devisee or legatee shall leave issue surviving
the testator ; but such devise or legacy shall be good and available
in favor of such surviving issue, with like effect as if such devisee
or legatee had survived the testator, unless the testator shall in the
will direct otherwise.

NOTE. The Act of May 6, 1844, Section 2, P. L. 565, saved from lapse
devises and legacies "made in favor of a brother or sister or the children
of a deceased brother or sister of any testator, such testator not leaving
any lineal descendants." It having been held in Gross's Estate, 10 Pa. 360,
and Guenther's Appeal, 4 W. N. C. 41, that this act did not apply to a be-
quest to the legatees as a class, the Act of July 12, 1897, P. L. 256, 4 Purd.
5143-4, amended the Act of 1844 by expressly providing for class legacies.



WILLS ACT SECTION 15 (&) 145

The Act of 1897 also amended the law by striking out the word "de-
ceased," so that the provisions of the act should apply to the children of
brothers or sisters, whether or not their parent was deceased, a require-
ment which seems irrelevant.

The section as now reported follows the language of the Act of 1897,
but further amends it by limiting it to cases where the testator "shall not
leave any lineal descendants who would receive the benefit of any lapsed
or void devise or legacy." This was probably the legislative intent, for
the provision saving from lapse legacies to certain legatees should not
depend upon the mere fact that the testator did not leave lineal descend-
ants, unless those descendants would profit by the lapse or failure of the
legacies. It was probably assumed by the legislature heretofore that if
the testator left lineal descendants they would be included among his re-
siduary devisees or legatees, and thus receive the benefit of the lapsed
devises and legacies, but this is not necessarily the case.

The Commissioners have not deemed it expedient to recommend any
further extension of the law in this regard. An examination of the stat-
utes of other states discloses a great variety of legislative policy some
statutes going so far as to save every legacy from lapse where the legatee
predeceases the testator. But statutes such as the present are really
canons of construction, intended to carry out an assumed testamentary
intent when it is not expressed, and there is great danger of carrying too
far rules which import into a written will a meaning which is more or
less artificial.

The term "issue" as used in this section of the Wills Act embraces
adopted children. Schaeffer, P. J., held, "When the will was made, on
November 12, 1917, giving a fourth share of the estate to the children of
the deceased brother, Howard, Stanley Kirby, one of them, was living
and had legally adopted as his son the said Raymond V. Kirby, as appears
by the decree of the Court of Common Pleas of Lancaster County, dated
January 30, 1915 almost two years before. It is to be assumed, there-
fore, that when she made her will, testatrix was aware of this adoption,
and in any event, it is clear that Stanley Kirby, as one of the children
of the deceased brother Howard, was at the date of the will a member
of the class of children of the deceased brother Howard. * * * The
question is, whether the term 'issue' in the act is meant to embrace
adopted children. The court sees no reason for excluding them. To so
exclude them, it seems, would be against the trend of all our late legis-
lation. Under the Intestate Act of 1917, for example, adopted children
are given equal rights of inheritance with other children, from and through
whom they inherit. Here the legislative intent was clearly to put adopted
children on the same plane as natural children; and this intent is fur-
ther evidenced in the Act of June 20, 1919, P. L. 521, relating to inheritance
taxes, where adopted children for purposes of direct taxation are put in the
same class as natural children ; or in other words, are not regarded as
collaterals. So, in Section 16, Clauses (a) and () of the Wills Act of
1917; and so running through all our late acts of assembly. Why, there-
fore, this adopted child of Stanley Kirby should be denied the right of
10



146 WILLS ACT SECTION 15 (fe), (c)

his father's legacy here in view of all the legislation on the subject, is
not clear to the court; and until some authoritative utterance making the
reason clear, has been presented, Raymond V. Kirby will be allowed to
participate in this distribution as the child of the deceased nephew, Stan-
ley." Moore's Estate, 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367.

Decedent died in March, 1918, and by her will disposed of the residue
of her estate as follows : "That the same shall be divided, share and share
alike, amongst all my nephews and nieces, having children or bodily heirs
(that is to say, that such nephews and nieces having no children shall not
inherit under this will)." Held, that a nephew dying before the date of
the will never became a member of the class and his children cannot par-
ticipate; that the children of a niece dying after the date of the will
participate; and that the granddaughter of a deceased nephew within the
class takes the share of her parent, since the Wills Act of 1917 does not
limit to children the right to take the share of a deceased legatee, but uses
the broader term "issue." Fetherolf's Est., No. 2, 29 Dist. 479, 12 Berks 62.

Where by the second clause of her will, the testatrix provided :

"I give, devise and bequeath all my estate of whatsoever and where-
soever situate unto my sister Margaret Boeshore, wife of Miller
Howard Boeshore, and my brother John Frederick W. Stock, in equal
shares," the court held, "Under the second section of the will, if it stood
alone, John Frederick W. Stock would take one-half of the estate, and
although Margaret Boeshore predeceased the testatrix, she left issue,
John Jacob Boeshore, who would take his mother's share, the other one-
half, under the Wills Act of June 7, 1917, Sec. 15 (&), P. L. 403." Stock's
Est., 49 Pa. C. C. 203, 29 Dist. 376.

See Gamier v. Gamier, 16 North 205.

235. LAPSED AND VOID DEVISES AND LEGACIES
TO FALL INTO RESIDUE; PROVISIONS
WHERE SUCH LEGACIES AND DEVISES
ARE CONTAINED IN RESIDUARY CLAUSE.

(c) Unless a contrary intention shall appear by the will, such
real or personal estate or interests therein as shall be comprised or
intended to be comprised in any devise or bequest in such will
contained, which shall fail or be void by reason of the death of
the devisee or legatee in the lifetime of the testator, or by reason
of such devise or bequest being contrary to law or otherwise in-
capable of taking effect, or which shall be revoked by the testator,
shall be included in the residuary devise or bequest, if any, con-
tained in such will. In any case where such devise or bequest,
which shall fail or be void or shall be revoked as aforesaid, shall
be contained in the residuary clause of such will, it shall pass to
and be divided among the other residuary devisees or legatees, if
any there be, in proportion to their respective interests in such
residue.



WILLS ACT SECTION 15 (c) 147

NOTE. This is Section 2 of the Act of June 4, 1879, P. L. 88, 4 Purd.
5145, amended so as to make it plain that it applies to personal as well as
real estate, by including revoked devises and bequests, and by the addition
of the last sentence.

This, like the other sections of the Act of 1879, was founded on the
English Statute of 7 William IV and i Viet., Chapter 26.

According to the present law, residuary gifts which are void or fail by
lapse pass to the next kin or heirs and not to the other residuary legatees
or devisees. The Supreme Court in Gray's Estate, 147 Pa. 67, 75, criti-
cized this rule as wrong in principle and subversive of the great canon of
construction, viz, the carrying out of the intent of the testator.f In Gor-
gas's Estate, 166 Pa. 269, the rule was followed in a case where it was
apparent from the language of the will that the testatrix intended not to
give the next of kin any interest in her estate. And in Wain's Estate, 156
Pa. 194, the rule was applied in the case of a revocation of a residuary
gift, Mr. Justice Mitchell repeating his criticism made in Gray's Estate.
The Commissioners therefore recommend the abolition of the common
law rule in accordance with the views expressed by the supreme court.

A legacy was held to have failed and was distributed as a part of the
residuary estate where the legatee after a legal tender of the money
refused to accept it. Under the Wills Act of 1917, clause 15 (c) this
legacy was "incapable of taking effect." "It does not appear to need
ny argument to prove that a legacy cannot be forced upon any person
who refuses to take it, and if it is refused when tendered, that it has
failed, or is void, by reason of being 'incapable of taking effect.' Authority
for this proposition is found in Wonsetler v. Wonsetler, 23 Super. Ct. 321,
where it is said : 'While the bequest vested the title in him, his refusal to
accept would leave it part of the testator's residuary estate,' and see
Cox v. Rodgers, 77 Pa. 160 ; Tar v. Robinson, 158 Pa. 60, and Price's
Est. 194 Pa. 135. A case in point is Peckham v. Newton, 4 Atl. 758



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 15 of 71)