Appeal, No. 64, Jan. T., 1953, from decree of Orphans' Court of Montgomery County, No. 44,870, in Estate of Annie G. Boyer, deceased. Decree affirmed.
William F. Fox, with him Fox, Differ and Honeyman, for appellants.
Paul P. Wisler, with him Wisler, Pearlstine, Talone & Gerber and George A. Butler, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The single question presented by this appeal is whether a pecuniary legacy in a codicil is cumulative or substitutionary. The court below ruled that the legacy is cumulative, and from that ruling the appeal is taken.
The professionally drawn will of Annie G. Boyer, the testatrix, had its thirty-four items respectively indicated by Roman numerals. Probated with this will is the holographic codicil consisting of five items which testatrix also indicated by Roman numerals. They were respectively numered, I, IV, IX, XIX and XXVI. Similarly numbered items appear in the will. Except where otherwise indicated to the contrary, the question of testamentary construction is whether or not testatrix intended to revoke certain items in the will and substitute therefor the similarly numbered items of the codicil. Thus, item I of the will bequeaths "my diamond bar pin and ring to my sister, Jennie Curren, absolutely. All the rest of my jewelry, clothing and personal effects, I give and bequeath to my husband, J. Frank Boyer, absolutely." Item I of the codicil gives her "diamond pin-wrist watch and ring" to her sister. The dispositive item of the codicil is silent concerning the gift of the rest of the jewelry, clothing and personal effects to her husband. Apparently the parties considered that such bequest to the husband in the will was not revoked by the codicil because the delivery thereof to the husband is noted in the petition for adjudication.
Item IV of the will is revoked by item IV of the codicil. Testatrix expressly states that this gift in the codicil is in substitution for that in the will. In the codicil she wrote "Valid" after enumerated articles IX and XIX. The corresponding numbers in the will are
(IX) gift of $500 to a named cousin and (XIX) gift of $1,000 to a named church.
In the will the following items appear: "ITEM V. I give and bequeath to my dear friend, Teresa M. O'Neill, the sum of One Thousand Dollars, absolutely."
By item XII the residuary estate was placed in trust to pay the income to testatrix's husband for life and upon his decease to pay the corpus as therein provided. The husband was named as executor. He filed his account, and all legacies then payable were duly paid. The husband, life ...