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MCFERREN ESTATE (11/13/50)

November 13, 1950

MCFERREN ESTATE


Appeals, Nos. 140, 141, 142, 144, 145, 188, 189 and 190, March T., 1950, from decree of Orphans' Court of Allegheny County 1947, No. 3133, in Estate of Gertrude Launtz Hopkins McFerren, or Gertrude L. McFerren, Deceased. Decree, as modified, affirmed.

COUNSEL

A. J. White Hutton, with him John A. Smarsh and Robbin B. Wolf, for Ruth McFerren Roof et al., appellants.

Robert W. McWhinney, for Mabel Elizabeth Miller Price et al., appellants.

Arthur W. Hendersoon, with him Judson A. Crane, William S. Moorhead, Jr. and Moorhead & Knox, for Edna Reynolds McCaully, appellant, and Rose Reynolds et al., appellees.

Kenneth P. Christman, for Edward H. Walters, appellant (at No. 145), and appellee (at Nos. 140, 141 and 142).

Before Drew, C.j., Stern, Stearne, Jones and Chidsey, JJ.

Author: Stearne

[ 365 Pa. Page 492]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Eight appeals have been taken from a definitive decree of distribution of a decedent's estate by the Orphans' Court of Allegheny County. All relate to ademption and lapse of legacies.

Before considering the various appeals the general principles of law relating to this subject matter must be examined. An ademption occurs where a legacy is specific and the thing bequeathed is disposed of by testator in his lifetime. There is no ademption, however, where the legacy is general. A legacy lapses because of the death of the legatee in the lifetime of testator, except where prevented by statute. This is in the absence of an express or implied intent of testator to the contrary. A specific legacy has been defined as a gift by will of a specific article or part of testator's estate,

[ 365 Pa. Page 493]

    which is identified and distinguished from all other things of the same kind, and which may be satisfied only by the delivery of the particular thing: Snyder's Estate, 217 Pa. 71, 66 A. 157; Wood's Estate, 267 Pa. 462, 110 A. 90; Lenhart's Estate, 344 Pa. 358, 25 A.2d 725. A general legacy is one without such words of identification. A specific legacy is deemed where the thing bequeathed was not a part of testator's estate, whether because it was sold, exchanged, or converted into another form: Hoke v. Herman, 21 Pa. 301; Pruner's Estate, 222 Pa. 179, 70 A. 1000; Horn's Estate, 317 Pa. 49, 175 A. 414; Wood's Estate, 267 Pa. 462, 110 A. 90; Blair et al., v. Shannon et al., 349 Pa. 550, 37 A.2d 563. A general legacy is not liable to ademption. In case of a general legacy of stocks or bonds, if none are owned by testator at the time of death, the legatee may elect to take the value in cash or have the fiduciary purchase them for him: Sponsler's Appeal, 107 Pa. 95; Snyder's Estate, 217 Pa. 71, 66 A. 157; Estate of James McGaw, Deceased, 85 Pa. Superior Ct. 545.

A legacy is presumed to be general rather than specific: Blackstone v. Blackstone, 3 Watts 335; Ludlam's Estate, 13 Pa. 187; Balliet's Appeal, 14 Pa. 451; Ferreck's Estate, 241 Pa. 340, 88 A. 505; Lenhart's Estate, 344 Pa. 358, 25 A.2d 725; Estate of James McGaw, Deceased, 85 Pa. ...


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