Appeal, No. 53, March T., 1954, from decree of Orphans' Court of Allegheny County, 1951, No. 3110, in Estate of Howard Morton Slater, deceased. Decree reversed; reargument refused June 4, 1954.
George R. Craig, for appellant.
Wayne Theophilus, with him Shoemaker & Eynon, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal raises the question whether the words in the second item of the will dispose of a residue of a residue or indicate testator's intent to bequeath the residue in its entirety. The correct proportions of the amount of the lapsed legacy distributable to the other residuary legatees is also in issue.
Howard Morton Slater, the testator, died June 15, 1951. His beneficiaries were three first cousins: Mary Spratt Aber, a doughter of a sister of testator's mother, and Ralph Canon and Alice Canon, children of a sister of testator's father. The will provided for funeral arrangements and for the erection of a headstone. By the second item of the will testator bequeathed his entire estate to the three first cousins as follows: "I give, devise and bequeath TWO-THIRDS (2/3) of my estate, real, personal and mixed, of whatsoever nature and wheresoever situate, to my cousin, MRS. L.E. ABER of No. 19 Mackin Avenue, Ingram, Pennsylvania, her heirs and assigns forever, and the remaining ONE-THIRD (1/3) of my estate, real, personal and mixed, of whatsoever nature and wheresoever situate, I give, devise and bequeath, in equal shares, to my cousins, RALPH and ALICE CANON, of Jancey Street, Pittsburgh, Pennsylvania, their heirs and assigns forever."
Alice Canon, the beneficiary of such one-sixth of testator's estate, predeceased testator on January 5, 1947. Her legacy, in consequence, lapsed. Mary Spratt Aber and Ralph Canon survived testator.
At the audit of the account of the executor, Ralph Canon claimed that he was entitled to the entire lapsed one-sixth share. Mary Spratt Aber contended that, being the beneficiary of two-thirds of testator's residuary estate, she was entitled to four-fifths of the one-sixth lapsed legacy. The auditing judge ruled, contrary to both contentions, that no residuary estate existed. He decreed that Alice Canon's lapsed one-sixth share passed under the intestate law. Both legatees filed exceptions. Upon argument the court in banc sustained the exceptions of Ralph Canon. It was decreed that the portion of Item II reading: "... and the remaining ONE-THIRD (1/3)... I give, devise and bequeath, in equal shares, to [named cousins]..." constituted the residuary clause and that "... [the] entire one-third of the above estate should, therefore, be distributed to Ralph Canon."
We are all of opinion that not only is such interpretation incorrect, but that the proportional distribution of the residue is likewise erroneous.
This Court in Armstrong Estate, 347 Pa. 23, 31 A.2d 528, adopting and quoting from the opinion of the late judge GEST in Adam's Estate, 11 D. & C. 644, decided that the residue of an estate is all that is left after devises and legacies have been paid or satisfied. At p. 25 it is stated: "... where a testator manifests an intent to dispose of everything not otherwise disposed of by the will, the dispositive clause is regarded as residuary;..." See also ...