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DUNLAP ESTATE. (03/14/55)

March 14, 1955

DUNLAP ESTATE.


Appeals, Nos. 100 to 105, inclusive, Jan. T., 1955, from decrees of Orphans' Court of Delaware County, Sept. T., 1925, No. 35, in Estate of George M. Dunlap, Deceased. Decrees reversed.

COUNSEL

Robert T. McCracken, with him James N. Robertson, John C. Gilpin, Samuel S. Logan, Jr., Robertson & Turner, Gilfillan, Gilpin & Brehman, and Montgomery, McCracken, Walker & Rhoads, for appellants.

Wm. E. Lingelbach, Jr., with him Caspar W. Morris, Jr., J. Wesley Oler, Robert W. Beatty, Butler & Beatty, Harwood & Gray and Morgan, Lewis & Bockius, for appellee.

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

Author: Bell

[ 381 Pa. Page 329]

OPINION BY MR. JUSTICE BELL

Testator provided in the 7th paragraph of his will that his residuary estate should be held in trust and should be divided into as many shares as there were children of his living at the time of his decease, and deceased children leaving issue living at the time of his decease. After providing for life estates testator further provided as follows: "From and immediately after the death of my children and the issue of any deceased children living at the time of my decease I direct my Executors and Trustees to divide the principal of the share of the one so dying equally among his or her children or the issue of any deceased children living at the time of his or her death, and in case there are no children or children of issue of deceased children I direct that my Executors and Trustees, or the survivors or survivor of them, shall convey and transfer the share of the one os dying to the heirs at law of the one so dying."*fn*

Testator, at the time he executed his will on December 3, 1919, was a widower and had three sons and two daughters. His son John predeceased him leaving a wife and son surviving him. After John's death testator executed a codicil dated March 25, 1924 which raises the controversial issue here involved. Two sons and two daughters survived testator. On of his daughters,

[ 381 Pa. Page 330]

Sophie, died December 27, 1953, unmarried and without issue.

Under the testamentary provision hereinabove recited, when Sophie died without children or issue, her heirs at law would include the present appellee, who is the son of her deceased brother John.

The question involved is a narrow one. Did testator's codicil exclude John's son from any share in Sophie's share of testator's estate?

The codicil provided: "FIRST: As my son, John M. Dunlap, is now deceased, and his widow has remarried, and as my grandson John M. Dunlap, Jr., is, in my opinion, sufficiently provided for, I hereby revoke and annul any and all gifts, devises and bequests contained in my said Will dated December 3, 1919, in which my deceased son John M. Dunlap, or his wife or his issue would participate in my estate, and I hereby give, devise and bequeath the said share or shares which under ther terms of my said will would have gone to my deceased son John M. Dunlap or his widow or his issue, to my Executors and Trustees named in my said Will, IN TRUST, for my other children, namely, George M. Dunlap, Jr., Helen J. Dunlap, Sophie R. ...


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