Raymond Moore Remick.

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

. (page 16 of 71)
Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 16 of 71)
Font size
QR-code for this ebook


(Rhode Island), where there was a bequest of a five thousand dollar bond
which was declined and renounced, and the Court citing Jarman on Wills
(5 Am. Ed. Rand & T.) 365, 762, said: 'A residuary gift of personal
estate carried not only everything not in terms disposed of, but everything
that in the event turns out to be not well disposed of. A presumption
arises for the residuary legatee, against every one except the particular
legatee; for the testator is supposed to give his personalty away from the
former only for the sake of the latter.' " Trimble, J. In Kane's Estate,
69 P. L. J. 820.

fSee Gamier v. Gamier, 16 North 205, p. 215.

Where three daughters are residuary legatees, the fact that one of them
resides in Germany and because of the Trading with the Enemy Act of
October 6, 1917, her share is payable to the Alien Property Custodian,
does not cause a lapse in her share that, under this section of the act,
such share is divisable between the remaining daughters the sisters of the
alien. The award will be to the Alien Property Custodian to hold for
her until the end of the war. Gregg's Estate, 266 Pa. 189, 109 Atl. 177.



148 WILLS ACT SECTION 15 (c)

Testatrix specifically devised certain premises to her husband for life,
with remainder to a charitable institution. The residue of her estate she
devised and bequeathed to her husband for life, with remainder to the
Archbishop of Philadelphia for the same charitable institution. She died
within thirty days after the execution of her will, so that the charitable
bequests and devises were void under the Wills Act of June 7, 1917, Sec.
6, P. L. 403. The husband then claimed that the remainder in the premises
specifically devised to him for life, passed to him in fee, under the Wills
Act of 1917, Sec. 15 (c), held, "This provision of the new act was clearly
intended to abolish the common law rule criticized by the Supreme Court in
Gray's Estate, 147 Pa. 67, that where the residuary estate is devised to or
among a number of devisees, and the devise as to one or more of them
lapses, or is avoided by some rule of law, or is revoked, an intestacy re-
sulted as to that share under the former rule. The obvious intention of
the act was to introduce the principle that in devises of this nature the
void or revoked share is to be divided among the other residuary devisees
in proportion to their respective interests. This contemplates the case
where the residuary devisees are given aliquot shares in the residue, and
not to a case like the present, where the devisees are respectively life
tenant and the remainderman and thus given estates of a different quality."
Gest, J., in McNulty's Estate, 29 Dist. 709.

Testator, after disposing of his personalty, gave his real estate to his
wife for her life. In a residuary clause of his will he devised to two
other persons all of his estate that remained at the death of his wife, but
devised to her, in case of the death before her of one of the residuary
devisees, the share of such deceased devisee. Terry, P. J., in holding
that under Section 15 of the Wills Act of June 7, 1917, P. L. 403, the
contingent devise to the wife did not lapse by reason of her death, as well
as that of said devisee, in the lifetime of the testator, but passed to the
other residuary devisee, and consequently the testator's collateral heirs
had no standing to ask for partition of the real estate devised, said : "An-
other provision in said subdivision of said section of the Wills Act, which
is new, is that a lapsed or void devise or bequest in the residuary clause
of a will shall pass to the other residuary devisees or legatees. The tes-
tator here, in such clause of his will, provided that if Allen Miller, one
of his two residuary devisees, died before his wife, she should have Mil-
ler's 'share' of the estate. Following that event and upon her death, Fred
Osterhout, the 'other' residuary devisee within the intendment of the
aforesaid provision of the Wills Act of 1917, took his mother's interest,
the lapse of the devise to her being thus prevented. The petitioner
claims only as stated, and his asserted right to share in said estate rests
solely on the assumption of a lapsed devise to testator's wife. As it
did not lapse, the petitioner has no interest in the real estate in controversy,
and, therefore, no standing to demand its partition." Jackson's Estate,
28 Dist. 943, 68 P. L. J. 613.



WILLS ACT-^SECTION 16 (a), (&) 149

236. DEVISE OR LEGACY TO CHILDREN TO IN-

CLUDE ADOPTED CHILDREN, CHILDREN
ADOPTED BY TESTATOR.

SECTION 16. (a) Whenever in any will a bequest or devise shall
be made to the child or children of the testator, without naming
such child or children, such bequest or devise shall be construed to
include any adopted child or children of the testator, unless a
contrary intention shall appear by the will.

NOTE. This is a new clause, introduced in conformity to the provisions
of the new Intestate Act relating to inheritance by adopted children.

This and the following section were cited to show that since the legis-
lature had the rights of adopted children constantly in mind, their omission
from Section 21 of the Wills Act was intentional and that it was not in-
tended to include after-adopted children within its provisions. Boyd's Es-
tate, 50 Pa. C. C. 163, 10 West. 47; affirmed in 270 Pa. 504. See also
Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367.

237, CHILDREN ADOPTED BY DEVISEE OR LEGA-

TEE.

(b) Whenever in any will a bequest or devise shall be made to
the child or children of any person other than the testator, without
naming such child or children, such bequest or devise shall be con-
strued to include any adopted child or children of such other per-
son who were adopted before the date of the will, unless a contrary
intention shall appear by the will.

NOTE. This clause is also new. It is limited to the case of children
adopted before the date of the will since it is a statutory canon of con-
struction referable to the time when the testator makes his will. An ex-
tension to include children adopted after the date of the will would tend
to defeat the intention of the testator.

See Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Boyd's Est,
50 Pa. C. C. 163, 10 West 47 aff'd in 270 Pa. 504.

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."



150 WILLS ACT SECTIONS 16 (b)-ij

The Wills Act of 1917 changed the rights of adopted children. Under
this act they now have the same rights of inheritance as children born
in lawful wedlock.

Trimble, J., held : " 'Issue,' in Section 15 (a) and 'child' or 'children'
in Section 16 (&) are necessarily synonymous in the restricted 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 construed to include
adopted children.' There can be no doubt that the legislature has the
right to say who shall inherit, and that it properly exercises this right in
describing the class referred to as 'child or children' by including adopted
children. If this were not so, all our statutes regulating adoption which
have given the right of inheritance would be void in this respect. A con-
trary view would arise from a strict interpretation, by adhering to the
letter and not to the spirit of the law. * * * If an adopted child can be
included as one of the next of kin or heirs at law who would take in in-
testacy, it cannot be said that the legislature does not have the authority
to include adopted children as part of the class of children who take
under a will." Hill's Estate, 69 P. L. J. 177, 3O Dist. 477, s. c. 69 P. L.
J. 348.

238. PECUNIARY LEGACIES TO BE CHARGED ON
RESIDUARY REAL ESTATE.

SECTION 17. All pecuniary legacies contained in any will shall
be charged upon and payable out of any real estate not specifically
devised, where the personal estate is insufficient for their payment,
or where the personal estate though originally sufficient has been
wasted or misapplied by the executor, unless a contrary intention
shall appear by the will.

NOTE. This section is new. The ordinary rule is that the personal es-
tate is not merely the primary fund for the payment of legacies, but the
only fund applicable thereto, unless they are made a charge upon the
real estate either by express terms or by clear implication. The Com-
missioners are of opinion that the real estate not specifically devised should
be assets for the payment of pecuniary legacies unless a contrary intention
appears from the will. This change is in accordance with several others
suggested by the Commissioners, which tend to the establishment of uni-
formity in the descent and distribution of realty and personalty, both being
considered as forms of property.

Many testators are unaware of the distinctions made by the law in this
respect, which depend for the most part upon historical reasons that at
the present day have lost their original significance; and such testators,
when they bequeath legacies of sums of money, will naturally expect them
to be paid even if their personal estates should prove insufficient. The
personal estate will continue as before to be the primary fund for the
payment of pecuniary legacies, the section of the act now recommended
charging their payment on real estate not specifically devised unless a con-
trary intention appears, thus merely changing the presumption of the
testator's intention.



WILLS ACT SECTION 17 151

In Maryland, a similar change was effected by Chapter 438 of the
Laws of 1894.

The provision applicable to the case of a devastavit of the personal
estate is believed to express the law as it now stands where legacies are
charged on land by the will: Cook v. Petty, 108 Pa. 138, and is included
by way of precaution.

See Greaves' Estate, 29 Dist. 577.

Testator bequeathed to his favored niece, whom he had brought from
Germany to be his housekeeper and with whom he had lived for nearly
thirty years, "all my personal property of every description, * * * in-
cluding bonds, mortgages, certificates of stock, household furniture, jew-
elry, ornaments and articles of decoration" absolutely. He gave the gen-
eral residue to others and authorized his executrix to sell his realty to
the best interest of the estate ; held, this was a specific legacy, and the debts,
expenses and other legacies were payable out of the proceeds of realty.
Gruner's Est., 49 Pa. C. C. 642, 29 Dist. 1095.

Where testator devised all the residue of his estate to his wife for
life "subject to the above devise and bequests to my brother and my sis-
ters," and further directed that his wife, if she elected to take under his
will, "shall execute such acquittance or acquittances as may be necessary
for vesting in my said brother and sisters the devise and bequests herein
made to them ; it was held that the legacies were a charge upon the real
estate on failure of the personalty as under Section 17 of the Wills Act
of 1917, no contrary intention could be gathered from the express terms
of the will.

Where even it does not abundantly appear from the whole will that tes-
tator did not intend to exempt his land from the payment of pecuniary
legacies and the law stood to-day as it was prior to enactment of Section
17 of the Wills Act of 1917, the fact of the blending of all his estate for
the purpose of distribution would require the construction to sustain the
contention that the legacies are chargeable upon the land on failure of
the personalty.

The court said : "Not only can no contrary intention be gathered by ex-
press words or by implication exempting the payment of the two pecuniary
legacies of one thousand dollars each, set forth in the petition as liens
upon the land, but the terms of the will expressly provide that the be-
quests of the residuary estate, first to the widow for her life and after-
wards among his children in fee simple, are subject to the devise and be-
quests in favor of his brother and his two sisters: to make this most clear,
he directs that his widow, if she takes under the will, shall execute such
acquittance or acquittances as may be necessary for vesting in these three
legatees the bequests to them. This necessarily carries with it a strong
declaration that his estate, irrespective of its kind, shall pay these lega-
cies, and that as an evidence thereof the widow must obtain from them
what he calls an acquittance meaning a release or receipt." Mulgrew's
Estate, 69 P. L. J. 169.



152 WILLS ACT SECTIONS 18-19

239. DEVISES OF REAL ESTATE SUBJECT TO

MORTGAGE,

SECTION 18. Unless the testator shall otherwise direct by his
will, the devisee of real estate, which is subject to mortgage, shall
take subject thereto and shall not be entitled to exoneration out
of the other estate of the testator, real or personal, and this
whether the mortgage was created by the testator or by a previous
owner or owners, and notwithstanding any general direction by
the testator that his debts be paid.

NOTE. This is a new section, intended to remove the existing distinction
between mortgages made by the testator and those created by previous
owners: Hirst's Appeal, 92 Pa. 491; Stuard's Estate, 17 Phila. 498;
Burton's Estate, 15 Pa. C. C. 367. The distinction is a very technical one,
not based on any presumed intention of the testator, but simply on the
ground that the personal estate is still the primary fund for the payment
of debts, as at one time it was the only asset. This historical justification
of the rule has long been outgrown; and the change here recommended
is in accord with the English Statutes of 17 and 18 Viet., Chapter 113; 30
and 31 Viet., Chapter 69; and 40 and 41 Viet., Chapter 34, known as the
Locke King Acts. Those statutes contain further provisions, which the
Commissioners have not included, considering them either unnecessary or
inapplicable in this state.

240. SPENDTHRIFT TRUSTEES; INCOME TO BE

LIABLE FOR MAINTENANCE OF WIFE AND
MINOR CHILDREN.

SECTION 19. All income whatsoever, devised or bequeathed by
any will so as to be free from liability for the debts, contracts or
engagements of the beneficiary, or so as not to be subject to exe-
cution, attachment sur judgment, sequestration or other process,
shall notwithstanding such testamentary provisions be subject to
and liable for the support and maintenance of the wife and minor
children of the beneficiary and for the value of necessaries fur-
nished to them or any of them, where said beneficiary has refused
or neglected to provide suitably for them, and all of the income
of said beneficiary shall be subject to all legal process issued by
any court of this commonwealth having jurisdiction in the prem-
ises in order to enforce such liability of said beneficiary.

NOTE. This is a new section. A similar provision as to orders for sup-
port appears in the Act of April 15, 1913, P. L. 72, 5 Purd. 5919, amend-
ing Section 2 of the Act of March 5, 1907, P. L. 6.

The Commissioners have been impressed with the evil arising from
the abuse of the doctrine of spendthrift trusts in this commonwealth.



WILLS ACT SECTIONS 19-20 (a), (&) 153

The decisions of the courts hold it legal for a testator in disposing of his
own property to bequeath it in trust so that it shall not be liable for the
debts of the beneficiary; but it is believed that this protection should not
be accorded to prevent the application of the income to the support and
maintenance of the family of the beneficiary, and enable him to escape
his marital and parental duties.

Since the present act is to apply only to the estates of persons dying
after its approval, this section does not fall within the opinion in Com. v.
Thomas, 65 Super. 275, holding the Act of 1913 invalid as to the estates
of testators dying before the date of that act.

241. REVOCATION OF WILLS, OF LANDS.

SECTION 20. (a) No will in writing concerning any real estate
shall be repealed nor shall any devise or directions therein be
altered otherwise than by some other will or codicil in writing, or
other writing declaring the same, executed and proved in the man-
ner hereinbefore provided, or by burning, cancelling, obliterating
or destroying the same by the testator himself, or by someone in
his presence, and by his express direction.

NOTE. This is Section 13 of the Act of April 8, 1833, P. L. 249, 4 Purd.
5130-5, which was founded on Section 6 of the Act of 1705, i Sm. L. 33,
that section, however, relating to personal estate only.

"Under the I3th section of the Act of 1833, reenacted by the Act of
June 7, 1917, P. L. 409, that which was once a perfect will must remain
such, unless repealed, altered or destroyed in one of the ways designated
by the act; and a mere direction to destroy, however express, can never
amount to a revocation, unless it should be followed by burning, cancel-
ling, obliterating or destroying; otherwise the great object of the act of
assembly, which was to prevent parol revocation, would be entirely lost:
Clingan v. Mitcheltree, 31 Pa. 25; Heise v. Heise, 31 Pa. 246; Dixon's
App., 55 Pa. 424; Jones's Est., 211 Pa. 364, 368. Therefore, before the
question of revocation or cancellation can come up, it must appear that
a perfect will was in existence upon which such question might be
founded." Justice Kephart, in Seiter's Estate, 265 Pa. 202, 108 All. 614.

242. WILLS OF PERSONALTY.

(&) No will in writing concerning any personal estate shall be
repealed, nor shall any bequest or direction therein be altered,
otherwise than as hereinbefore provided in the case of real estate,
except by a nuncupative will, made under the circumstances set
forth in Section 4 1 of this act, and also committed to writing in the
lifetime of the testator, and after the writing thereof, read to or
by him, and allowed by him, and proved to be so done by two or
more witnesses.

1 See 217-220 supra.



154 WILLS ACT SECTIONS 20 (6) -21

NOTE. This is Section 14 of the Act of 1833, 4 Purd. 5135, which made
no change in the law as it existed under the Act of 1705, I Sm. L. 33.

See 217-20 supra.

Under the Act of June 7, 1917, P. L. 409, no question of the revocation
or cancellation of a will can arise, unless it is shown that a perfect will
was in existence upon which such question might be founded. Under the
Act of June 7, 1917, P. L. 409, that which was once a perfect will must
remain such, unless repealed, altered or destroyed in one of the ways
designated by the act; a mere direction to destroy, however express, can
never amount to a revocation, unless it should be followed by burning,
cancelling, obliterating or destroying the will. Seiter's Estate, 265 Pa. 202,
108 Atl. 614.

243. REVOCATION OF WILLS PRO TANTO BY SUB-
SEQUENT MARRIAGE OR BIRTH OF CHIL-
DREN.

SECTION 21. When any person, male or female, shall make a
last will and testament and afterward shall marry or shall have a
child or children, either by birth or by adoption, 1 not provided for
in such will, and shall die, leaving a surviving spouse and such
child or children, or either a surviving spouse or such child or
children, although such child or children be born after the death
of their father, every such person, so far as shall regard the
surviving spouse, or child or children born or adopted 1 after the
making of the will, shall be deemed and construed to die intestate ;
and such surviving spouse, child or children, shall be entitled to
such purports, shares and dividends of the estate, real and per-
sonal, of the deceased, as if such person had actually died without
any will.

NOTE. This is Section 15 of the Act of 1833, 4 Purd. 5135-7, modified
so as to make the law the same with regard to women as it is with regard
to men. This involves the repeal of Section 16 of the Act of 1833, 4 Purd.
5137, relating to wills of single women. In the fourth and fifth lines,
"such" has been inserted before "child" ; and in the ninth line, "born after
the making of the will" has been substituted for "afterborn."

Section 15 of the Act of 1833 was founded on Section 23 of the Act of
April 19, 1794, 3 Sm. L. 143.

The history of our legislation upon the subject is reviewed by Judge
Penrose in Fidelity Trust Company's Appeal, 121 Pa. I ; and in Owens v.
Haines, 199 Pa. 137, it was decided that the will of a woman was revoked
pro tanto under the Act of 1833 by the subsequent birth of issue. To this
extent, the section now reported is merely declaratory of the existing law;
but the Commissioners in making its language general without distinction
of sex also recommend for repeal Section 16 of the Act of 1833, 4 Purd.

1 Added by amendatory Act of May 20, 1921 (P. L. 937).



WILLS ACT SECTION 21 155

5137, which provides that a will executed by a single woman shall be
deemed revoked by her subsequent marriage. This is in accordance with
the views of the Commissioners as expressed in this new Wills Act, as
well as in the new Intestate Act, that the property rights of husband and
wife should be the same. The old law required, in case of a testator,
that both marriage and birth of issue should take place in order to effect
a revocation of the will, while a woman's will was revoked by marriage
alone, because of the merger of her legal identity in that of her husband.
In Pennsylvania, the effect of the legislation was to make either marriage
or the birth of children unprovided for operate as a revocation pro tanto
of the will of the testator, while marriage annulled the will of a woman,
though birth of children unprovided for revoked it only pro tanto. In some
other states, and in England by the Statute of 7 William IV and I Viet.,
Chapter 26, Section 18, the law has been made uniform by giving this ef-
fect of absolute revocation to the mere marriage of the testator as well
as to the marriage of a testatrix, a change that does not appear advisable,
for the purpose of the doctrine of implied revocation by such a change
of circumstances is only to protect the rights of those persons who as
spouse or children afterward come into being. This object is accomplished
by providing in every case for a revocation so far as such persons are
concerned, and it is not necessary to annul the entire will.

Where a widow makes her will, marries a second time, and dies leav-
ing in existence the will made prior to her second marriage, her surviving
husband is entitled under the Wills Act of June 7, 1917, P. L. 403, and the
Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July
n, 1917, P. L. 755, to the allowance of $5,000 provided by the Intestate
Act. By her remarriage her will, as to her second husband, was annulled,
and there was an actual intestacy as to him. Shestack's Est., 267 Pa. 115,
no Atl. 1 66.

Testator, by his will, disposed of his entire estate; afterwards he mar-
ried, and then executed a codicil giving, inter alia, to his wife the premises
occupied by them at the time of his death, with all furniture and silver-
ware contained therein, and $25,000 in cash, "in addition to any interest
which my said wife would take under my will or under the intestate
laws." After his death the widow filed her election to take under the
codicil of the will the amount therein given to her, to wit, the mansion
house, the sum of $25,000, and the amount which she would have re-
ceived had he died intestate. At the audit she claimed these portions of
the estate, in addition to her exemption of $500. The auditing judge al-
lowed her claim, holding that the election filed amounted to an election
to take under the will and codicil, and that in effect testator had incor-
porated the provisions of the intestate law into his will and considered
his will and codicil as making one will together. Gest, J., held:

"Stress was laid by counsel in the argument on the other side upon the
use of the word 'or' as defining an alternative of two bequests, either of
which she might take, but not both, thus putting the widow to an election,



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 16 of 71)