Appeals, Nos. 4, 5 and 6, May T., 1959, from decree of Orphans' Court of York County, in re estate of Esther Trattner, deceased. Decree affirmed.
Nevin Stetler, with him Leo E. Gribbin, Jr., for appellant.
Donn I. Cohen, with him Lavere C. Senft, and Cohen and Senft, for appellee.
Before Jones, C.j., Bell, Musmanno and Jones, JJ.
Esther Trattner, the decedent, died testate, May 17, 1952, her will having been executed slightly more than six months prior to her death.
The sole issue raised upon this appeal involves the interpretation of Item Eighth, paragraph 51 of the will. Item Eighth actually disposed of the residue of the estate. We are called upon to interpret by way of identification Item Eighth, paragraph 51 which provides as follows: "to any grandniece or nephew born after the execution of this Will, one-half (1/2) part of the residue, until 3 parts are consumed."
The record reveals that no grandnieces or grandnephews were born between the date of the will and the date of death, but that, subsequent to testatrix's death, three grandnieces and three grandnephews were born and a grandniece and a grandnephew adopted. The court below properly concluded that the language of Item Eighth paragraph 51 was intended to include only grandnieces or grandnephews and not great grandnieces or great grandnephews and that testatrix had specifically limited to six, the number of legatees entitled to distribution. Of the six natural grandnieces and grandnephews four were born more than one year subsequent to testatrix's death and the adopted grandniece and grandnephew were adopted more than a year after testatrix's death. The court below properly concluded that the language of Item Eighth, paragraph 51 evidenced a class gift which failed as to all but the two grandnieces who were en ventre sa mere at the time of testatrix's death. A grandniece and two grandnephews who were excluded from the class gift have appealed from the decree of the court below.
The decree is affirmed on the following excerpts from the able opinion of President Judge HARVEY A. GROSS.
"A determination must now be made as to the participants, if any, under Item Eighth, paragraph 51 of the will, which reads: 'to any grandniece or nephew born after the execution of this Will, one-half (1/2) part of the residue, until 3 parts are consumed.'
"It is held that the maximum distribution under the above quoted provisions would in any event be ...