Appeal, No. 6, Jan. T., 1959, from decree of Orphans' Court of Blair County, No. 39 O.C. 1957, in re estate of Samuel Metzgar, deceased. Decree affirmed.
Alexander A. Notopoulos, for appellant.
Richard A. Carothers, with him Samuel H. Jubelirer, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Samuel Metzgar died February 19, 1955 survived by a sister, Savannah B. Paul, and nephews and nieces, children of deceased brothers and sisters. Under his last will - executed March 10, 1914 - he provided, inter alia: "I devise that all my property: Real, and personal to my beloved wife, Ida Priscilla, during her life. And from and after her death to my Brothers and Sisters then living share and share alike".
The wife-life tenant died on December 16, 1936, 22 years after execution of the will and 19 years prior to the testator's death. When she died two sisters of the testator were then living, Mary E. Loreman and Savannah B. Paul. The former died in 1937, her sole
survivor being a daughter, Mary I. Etienne. When testator died, he, (so far as herein pertinent), was survived by the one living sister, Savannah B. Paul, and the niece, Mary I. Etienne.
When testator's personal representatives filed their account they suggested distribution of the balance of the estate to Savannah Paul on the theory that she alone had survived the testator, and thus constituted the only member of the class entitled to take. Mary Etienne claimed that, since her mother, Mary E. Loreman, survived the life tenant, she, as the representative of her mother, was a member of the class, and was entitled to take one-half of the estate. She, accordingly, filed exceptions to the suggested distribution.
The court below referred the matter to an auditor who found that testator had intended to make a class gift, that membership in the class was fixed at the time of the wife-life tenant's death, that the members of the class were Mary E. Loreman and Savannah Paul and recommended distribution of the balance of the estate equally between Savannah Paul and Mary E. Loreman's only survivor, Mary Etienne. The court below adopted the auditor's recommendations and entered a decree dividing the estate equally between Savannah Paul and Mary Etienne. From this decree Savannah Paul took this appeal.
The sole question herein presented is whether under the language of this will membership in the class of takers was to be ascertained at the time of the lifetenant's, or the testator's, death. Any discussion of whether the interest of the testator's brothers and sisters under this will was vested or contingent would seem academic in view of the testamentary requirement that the takers must survive to a certain time or event; whether the interest be vested or ...