Thomas A. Swope, Philip N. Shettig and Shettig & Swope, all of Ebensburg, for appellant.
Harold Kaminsky, Johnstown, for appellee.
Before Hirt, Acting President Judge and Rhodes, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 472]
Mary F. Edwards died March 26, 1948, leaving a last will and testament dated March 16, 1948, and two codicils thereto dated March 24, 1948.
The question presented on this appeal is whether a bequest to a sister, in the eighth paragraph of testatrix's will, of 'all cash' which remained after payment of debts and specific legacies operated as a residuary clause to pass the balance of the proceeds of real estate to the legatee named, or whether this balance was undisposed of by the will and hence distributable under the intestate law. The court below held the bequest of 'cash' to the sister of testatrix passed the proceeds derived from the sale of real estate. The present appeal is by a half-brother of testatrix, who would be entitled to a share of such proceeds under the intestate laws.
The eighth paragraph of the will reads as follows:
'Eighth: I give, devise and bequeath to Mrs. Eliza Kline all cas [cash] which remains after all my just debts and funeral expenses and the two aforementioned bequests of one thousand dollars and five hundred dollars have been paid.'
The will of nineteen paragraphs contained several specific bequests of items of personal property and cash to named leatees.
At the time of her death testatrix owned three pieces of real estate: (1) Property at 800 North Avenue in the Borough of Westmont, Cambria County, specifically devised in paragraph four to Charles F. Edwards and John W. Edwards equally; (2) property at 817 North Avenue, Westmont, specifically devised in paragraph five to appellee, Mrs. Eliza Kline; and (3) property on Franklin Street, Johnstown, Cambria County.
[ 168 Pa. Super. Page 473]
Testatrix's will contained no residuary clause. The Franklin Street property is nowhere mentioned in the will, but in a codicil dated March 24, 1948, testatrix provided: 'Charlie hasn't been in to influence me and I want him to have $500 more from the sale of property between John and Charlie and $500 from sale of property on Franklin St.' Her personal property was insufficient to pay debts and the specific cash bequests. Accordingly the executors, after petition to the Orphans' Court of Cambria County, sold the Franklin Street property for $8,900. After payment of debts ...