Appeal, No. 243, March T., 1954, from decree of the Orphans' Court of Erie County, Sept. T., 1953, No. 226, in Estate of Charlotte Elizabeth Battles, deceased. Decree, as modified, affirmed. Proceeding upon petition by beneficiary under will for conveyance of real estate free of conditions and restrictions. Before ROBERTS, P.J. Adjudication filed finding for petitioner; exceptions to adjudication dismissed in part and final decree entered. Co-trustee appealed.
John A. Spaeder, with him Marsh, Spaeder, Baur & Spaeder, for appellant.
P. V. Gifford and David S. Gifford, for appellee.
W. Pitt Gifford, with him Gifford, Graham, MacDonald & Illig, for the estate.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This appeal concerns the construction of a will. The pivotal question is whether or not the hearing judge correctly ruled that parol testimony of testamentary intent could not be admitted.
Charlotte Elizabeth Battles, the testatrix, provided in the third item of her will: "It has been my desire that the property which I purchased from the Estate of Charlotte Webster and which is known as the Webster Home, and which was the home of my grandparents, James and Mary Webster, located on Main Street in the Borough of Girard, Pennsylvania, shall be utilized as a home for elderly people as a memorial to my said grandparents; and I now authorize and empower my Executors and Trustees hereinafter named to make arrangements with the Presbyterian Home & Hospital of Erie, or some other suitable corporation or group of individuals, for the conduct and maintenance of a dignified and proper home for elderly people as a memorial to my grandparents above named; and if suitable arrangements can be made insuring the accomplishment of that purpose, I authorize and empower my said Executors and Trustees to convey by proper deed of conveyance the premises ... to the Presbyterian Home & Hospital of Erie or such other corporation or individuals as my said named Executrix and Trustees can make suitable arrangements with for the conduct of such a memorial home, such conveyance to be without consideration." The First National Bank
of Erie and Georgiana Read were named as executors and trustees.
The Presbyterian Home & Hospital of Erie, by change of name to The Presbyterian Homes in the Presbytery of Erie, being of opinion that under its charter, organization and management it constitutes "a dignified and proper home for elderly people", applied to the fiduciaries for the conveyance of the premises as provided in the will. The officers of the Home testified that upon the conveyance the premises would be kept and maintained "as a memorial to [testatrix's] grandparents". The corporate executor and trustee is satisfied that the claimant is qualified to take the devise according to the terms of the will. Georgiana Read, the co-executor and co-trustee, refuses to join in the conveyance unless the claimant agrees to accept the devise under the "... terms, conditions and restrictions enunciated and given to the [Home] by [testatrix] during her lifetime..."
The corporate claimant secured a citation upon the executors and trustees to show cause why they should not convey real estate to it in accordance with the terms of the will. After a hearing was had by the court, an answer was filed by the individual executrix and trustee contending that the Home had failed to accede to the terms, conditions and restrictions above mentioned. The citation was made ...