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WEAVER ESTATE. (09/30/57)

September 30, 1957

WEAVER ESTATE.


Appeals, Nos. 133 to 137, inclusive, Jan. T., 1957, from decree of Orphans' Court of Montgomery County, No. 43,880, as of April T., 1937, No. 13, in re estate of John H. Weaver, deceased. Decree reversed.

COUNSEL

James J. Convery, with him LaBrum & Doak, for appellant.

William H. S. Wells, appellant, in propria persona, with him Gerald K. Burns and Saul, Ewing, Remick & Saul.

Thomas Raeburn White, with him LeRoy E. Perper, Aaron S. Swartz, Jr., Ira Jewell Williams, Jr. and Ira Jewell Williams, for appellees.

John B. Hannum, 3rd, with him T. F. Edwards and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellees.

Robert W. Honeyman, appellee, in propria persona, with him Desmond J. McTighe and John Russell, Jr.

Before Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 390 Pa. Page 130]

OPINION BY MR. JUSTICE BELL

John H. Weaver died April 26, 1934, leaving a will dated January 12, 1934. He left surviving him a widow, who died March 26, 1935; a daughter, Phoebe Weaver Macklin, who died April 21, 1936, and her husband, John F. Macklin, who died October 10, 1949, and two Macklin children, John H. Weaver Macklin and Ida Weaver Macklin Lilley Wark. He also left surviving him the following grandchildren, who were the children of his deceased daughter, Marian Weaver Downes (Jampmann): Robert S. Kampmann, Jr., Elizabeth Kampmann Brown, and Marion Weaver (Kampmann) Horner. All of the above mentioned grandchildren are still living except Ida Macklin Wark (Phoebe Macklin's daughter) who died March 25, 1953, survived by four minor children, William Lilley, 3rd, Phoebe Anne Lilley, John Weaver Lilley and Victoria Lilley.

The Third Account and Supplemental thereto of the Trustee of the Estate of John H. Weaver, Deceased, was filed because of the death of Ida Macklin Wark and the necessary (partil) distribution of principal which the testator provided should be made upon her death. The balance of principal shown by the Account amounted to over $6,153,000. The important question involved is: Did the lower Court correctly charge against the entire residuary trust principal, certain withdrawals of principal amounting to $100,000 by two Kampmann grandchildren?

Mr. Weaver's will is, in some respects, unusual, - because of (a) the preference he showed for his daughter, Phoebe Weaver Macklin, and her husband and her descendants, and (b) the antagonism he showed for Robert S. Kampmann, husband of his deceased daughter, Marian Weaver Downes, and (c) the limited

[ 390 Pa. Page 131]

    amount of income he gave to the Kampmann grandchildren.

Before analyzing Weaver's will it is well to state the clearly settled rules or canons of construction which are pertinent. In McFadden Estate, 381 Pa. 464, 112 A.2d 148, the Court, quoting from Liffer Estate, 377 Pa. 227, 231, 103 A.2d 670, said (page 467): "'The intention of the testator is the pole star in the interpretation of every will and that intention must be ascertained from a consideration of the entire will, including its scheme of distribution as well as its language, together with all the surrounding and attendant circumstances: Lyle Estate, 374 Pa. 344, 97 A.2d 830; Brumbach Estate, 373 Pa. 302, 95 A.2d 514; Newlin Estate, 367 Pa. 527, 80 A.2d 819; Anderson Estate, 373 Pa. 294, 95 A.2d 674.'" See also: Britt Estate, 369 Pa. 450, 454, 455, 87 A.2d 243; Sowers Estate, 383 Pa. 566, 570, 119 A.2d 60; Conlin Estate, 388 Pa. 483, 131 A.2d 117.

Weaver divided his will into numbered items or paragraphs. In Paragraph 2 of his will he gave and devised his homestead (in Merion) to his wife for life or so long as she remained unmarried, and upon her death or remarriage to his daughter, Phoebe Weaver Macklin, for her life or as long as she desired to use it as a home. In Paragraph 3 he gave and devised his house and lot in Ventnor, New Jersey, to his wife for life or so long as she remained unmarried, and at her death or remarriage, to his daughter, Phoebe Weaver Macklin, in fee simple. He made a similar bequest in Paragraph 3 of the household goods and furnishings in his Ventnor property.

In Paragraph 5 of his will, Weaver gave portraits of his wife and himself to his daughter, Phoebe Weaver Macklin; his jewelry and personal effects to his wife, if ...


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