Appeal, No. 47, March T., 1953, from decree of Orphans' Court of Allegheny County, 1949, No. 3590, in Estate of Mildred Dublin, deceased. Decree affirmed.
Elder W. Marshall, with him Harry A. Estep, Carl E. Glock, Jr., and Reed, Smith, Shaw & McClay for appellants.
William H. Eckert, with him Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The question in this case is whether a devise of real estate was adeemed by an agreement of sale of the devised property which the testatrix entered into subsequent to the execution of her will. The learned court below, one judge dissenting, held that the agreement did not work an ademption. With that, we agree.
The testatrix's sister and brother (the latter, now deceased, represented by his executor), as the named legatees of the testatrix's personal estate, have appealed, taking a joint appeal, however, in the name of
the sister and the brother's executor. Since their interests are several, a joint appeal was not proper. But, the appeal was taken timely and we shall, under our practice (Taylor's Estate, 277 Pa. 518, 522-523, 121 A. 310), enter a non pros as to the appellant fiduciary of the deceased brother and proceed to a disposition of the appeal on its merits as the appeal of the sister alone with an appropriate division of the costs between them. In the circumstances present, this course does not militate against the brother's estate and it does make appellate review of the lower court's decree possible.
The testatrix, Mildred Dublin, a resident of Pittsburgh, died unmarried, leaving to survive her a sister, Marjorie C. Dublin (with whom she lived), and a brother, Alfred S. Dublin. By her will she disposed of her estate as follows: By paragraph 1 she directed payment of her debts; by paragraph 2 she gave her clothing and furnishings to her sister; by paragraph 3 she directed that all of her personal property (other than that disposed of in paragraph 2) be sold and the proceeds, together with any other moneys belonging to her at her decease, divided equally between her brother and sister or the survivor of them; (paragraph 4 we shall pass for the moment); by paragraph 5 she directed that certain yearly payments, amounting to $12,000 per annum, which she was receiving under a settlement agreement with the estate of one John W. Hubbard, deceased, be paid to her attorney, Jason Richardson; and by paragraph 6 she appointed her executors. The bequest to her attorney under paragraph 5, she later revoked by a holographic codicil wherein she named her brother and sister as the legatees of that fund.
The controversy revolves about the meaning of paragraph 4 of the will ...