Appeal, No. 66, Jan. T., 1955, from decree of Orphans' Court of Montgomery County, August T., 1954, No. 55091, in Estate of Elizabeth H. Burns, Deceased. Decree affirmed.
Philip A. Bregy, with him MacCoy, Evans & Lewis, for appellants.
Therman P. Britt, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The rights of the parties to this controversy depend upon the construction of the will of Elizabeth H. Burns. Mrs. Burns, a resident of Montgomery County, died on October 19, 1952 leaving a will in which she disposed of her residuary estate in Item VI thereof, the first clause of which provided: "Because my children are so well provided for under the wills of their father and their great-grandfather, and for no other reason, I give, devise and bequeath all the rest, residue and remainder of my estate of every kind and nature whatsoever and wheresoever situate and over which I may have any power of appointment to my mother, Maud Emery Hatch, absolutely should she survive me, with the proviso, however, that although she is to have the privilege and power of disposing of and consuming my estate if she so desires, nevertheless, should any part of my said residuary estate remain undisposed of upon the death of my mother, I give, devise and bequeath the said undisposed of balance of my said residuary estate absolutely to my husband's stepsister, Mabel Klingenschmitt,
if she shall survive my mother ...". Then followed a number of clauses which, in the event that Mabel Klingenschmitt predeceased Mrs. Hatch, gave the remaining residue to the testatrix's two children, Valerie and Robert, or their issue, or if none survived Mrs. Hatch, to the Woman's Medical College and Hospital, Philadelphia, Pennsylvania. A clause also provided that if Mrs. Hatch predeceased the testatrix and Mabel Klingenschmitt survived the latter, Mabel Klingenschmitt was to receive all of the residuary estate absolutely.
Both Mrs. Hatch and Mabel Klingenschmitt survived the decedent. On March 21, 1953, about three months after the decedent's death, Mrs. Hatch died, leaving all of her estate to Ida Fiske Hale whom she also named as executrix. The court below entered a final decree confirming the decree nisi of the auditing judge who awarded the remaining residue of Mrs. Burns' estate to Mabel Klingenschmitt. Ida Fiske Hale, as executrix and residuary legatee under Mrs. Hatch's will, appeals therefrom.
In claiming the residue of Mrs. Burns' estate, appellant contends that under the first clause of Item VI above recited Mrs. Hatch received either an absolute estate or at least a life estate with a general power of appointment which she exercised by her will. In contending that Mrs. Hatch took an absolute estate, appellant must ignore the proviso contained in the same clause - indeed in the same sentence - which qualifies the initial language employed by restricting it to the power "to dispose of and consume" with a gift over of the residue remaining. In Kern's Estate, 296 Pa. 348, 145 A. 824, Chief Justice MOSCHZISKER, quoting with approval from Montgomery, Jr. v. Martin et al., 294 Pa. 25, 32, 143 A. 505, said: "... 'The office of a proviso is to qualify, restrain or otherwise modify the general
language' of a principal clause; 'a proviso ... can have no existence separate and apart from the provision which it is designated to limit or qualify.' We there further pointed out that 'these are not technical but common sense rules, ...