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WALKER ESTATE (01/04/54)

January 4, 1954

WALKER ESTATE


Appeals, Nos. 152, 153, 154, 155 and 157, March T., 1953, from decree of Orphans' Court of Allegheny County, 1951, No. 1749, in Estate of John Walker, deceased. Decree reversed.

COUNSEL

J. Garfield Houston, with him J. Henry O'Neill, Park J. Alexander, Thomas Watson and Robert L. Kirkpatrick, for appellants.

William H. Eckert, with him James E. MacCloskey, Jr. and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellant.

Elder W. Marshall, with him Edmund K. Trent, William A. Seifert and Reed, Smith, Shaw & McClay, for appellees.

Before Stern, C.j. Stearne, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 376 Pa. Page 18]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

These appeals require a construction of the will of John Walker, deceased, with particular reference to a phrase in the tenth item. That item makes provision for testator's son, Henry. The phrase reads: "if he survives my wife and me". Upon the audit of the trustees' account the auditing judge ruled that the phrase had reference only to the son's life estate and all other dispositions in the item were effective, even though the son did not survive testator's widow, the son's stepmother. The court in banc overruled the auditing judge and decided that the phrase made the bequest to the son conditioned upon his surviving testator's widow, and since the son did not so survive, an intestacy resulted as to this share. The executor and trustee under the son's will and certain of the son's appointees under his power of appointment have appealed.

In construing a will it is the court's first duty to examine the will and, if possible, ascertain its meaning without reference to canons of construction: Mulliken v. Earnshaw, 209 Pa. 226, 58 A. 286; Groninger's Estate, 268 Pa. 184, 187, 110 A. 465; Weir's Estate, 307 Pa. 461, 467, 161 A. 730.

[ 376 Pa. Page 19]

It is apparent that this will and its codicil were professionally drawn. The provisions in the first seven items of the will and those in the codicil are not involved in this construction. By the eighth item the residue of testator's estate was placed in trust to pay his widow, Susan C. Walker, the entire net income for her life: "And upon the further trust, upon my death, to divide the whole of the said trust property (subject, however, to the life estate hereinbefore given to my wife) into the same number of equal shares as the number of my children who survive me or who are dead, leaving issue surviving me, and to set aside or allocate one equal share for each of my said children. My Trustees, however, may hold, and manage the said property as a whole and merely set aside an undivided portion thereof for my children until there is an actual allotment or distribution of the corpus of my estate, as hereinafter set forth." (Emphasis supplied)

By item nine an equal one fourth share is bequeathed to testator's daughter, Margaret, "upon the death of [his] wife, provided Margaret is then living". (Italics supplied)

By the tenth item provision is made for his son, Henry, in the following language: "And upon the further trust, with respect to the share set apart for my son, Henry P. Walker, if he survives my wife and me, to continue to hold the said share for and during the term of his life, with the powers and authority hereinbefore given, and to pay the net income therefrom to my son, Henry, in quarter-yearly installments, for and during his lifetime; and upon the death of my son, Henry, if he should leave a child or children, or more remote issue, ...


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