Erwin L. Pincus, Harry Fischer, Philadelphia, for appellant.
Ralph C. Donohoe, Philadelphia, for appellee.
Before Rhodes, P. J., and Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 384]
Joseph F. Connolly died April 20, 1948, leaving a holographic will which bequeathed 'To Curtis N. Pfau 25 shares of stock in the Curtis Publishing Company * * *' The legatee is a minor, unrelated to testator. Testator, at his death, owned 21 shares of preferred and 53 shares of common stock in the Curtis Publishing Company. The auditing judge held the bequest was a general legacy and awarded to the legatee's guardian 25 preferred shares, thereby requiring the estate to purchase four additional preferred shares out of its general assets.
Mary C. Connolly, appellant, testator's sister and sole heir and next of kin, filed exceptions to the adjudication contending that (1) testator's use of the word 'stock' was ambiguous and the gift must fail for want of certainty, (2) if the gift is unambiguous, the word 'stock' was intended to mean common stock and not preferred stock, and (3) the auditing judge erred in invoking the doctrine of selection to a bequest which is concededly not specific. The court en banc (the auditing judge dissenting) dismissed her exceptions and concluded that the bequest was a demonstrative legacy and accorded the legatee the right to select out of the
[ 166 Pa. Super. Page 385]
securities owned by the testator at his death those which were most advantageous to the legatee, to wit, 21 shares of preferred and four shares of common stock. From the dismissal of her exceptions, Mary C. Connolly has appealed.
Testator wrote his will in 1943 while he was in the military service. He previously had been employed by the Curtis Publishing Company. Under a stock purchase plan with that company he had agreed to buy 25 shares of its preferred stock, 63 shares of its common stock and some debentures. He never completed the purchase but subsequent to the execution of his will he elected to take 21 shares of preferred and 53 shares of common stock for which he had already paid.
Appellant's contention that the word 'stock' as used in the legacy is ambiguous is without merit for '* * * 'a subject exists which satisfies the terms of the will, and to which [it is] perfectly applicable. * * *'. In re Mizener's Estate, 262 Pa. 62, 65, 105 A. 46, 47.
The legacy in question is a general and not a specific legacy. It lacks words characteristic of a specific legacy. The testator did not employ possessive words such as my, which I hold, etc. Cf. Blackstone v. Blackstone, 3 Watts 335, 27 Am.Dec. 359; In re Horn's Estate, 317 Pa. 49, 51, 175 A. 414, 97 A.L.R. 1029; In re Crawford's Estate, 293 Pa. 570, 143 A. 214. Moreover, it is the only legacy in the will that does not have specifying words. The testator used the word 'my' when he bequeathed 'my Social Security and Old Age Pension money,' and when he gave 'my one-half of the bungalow * * *.' Where, as here, there is a bequest of a number of shares of stock of a designated corporation without further explanation and without more particularly referring to and indicating the identical shares to be bequeathed, the gift is construed as a general legacy and ...