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April 20, 1959


Appeals, Nos. 220 and 221, March T., 1958, from decrees of Orphans' Court of Allegheny County, No. 5032-A1 of 1946, in re estate of Alice Maud Palmer Campbell, deceased, trust for John Campbell et al. Decrees affirmed.


Craig Stockdale, with him Snee and Stockdale, for appellants.

Charles J. Spinelli, with him Edward A. Witt, and Spinelli & McLean, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 395 Pa. Page 396]


The issue here is whether distribution of a residuary estate should be per stirpes or per capita.

The crucial part of the will reads as follows: "FIFTEENTH: All the rest, residue and remainder of my estate,

[ 395 Pa. Page 397]

I give, devise and bequeath unto the Union Trust Company of Pittsburgh, Pa., in trust nevertheless for the use and benefit of the brothers and sisters of my dear husband who survive me, namely, John, Elmer, Edith and Ethel, for and during their lifetime. After the death of any one of the above brothers or sisters, then I direct that his or her share or all of their shares at the death of all of them, go to the children of Edith Campbell Montgomery and William Campbell, son of Elmer Campbell, and Elizabeth McCool Salony, daughter of Marjorie Campbell McCool, deceased, and their heirs and assigns, share and share alike."

The testatrix had no family of her own. Her husband predeceased her, leaving five brothers and sisters: one of these, Marjorie Campbell McCool, died before the testatrix, leaving one child, Elizabeth McCool Salony. Of the other four, who survived the testatrix, two left no issue. Of the remaining two, Elmer left one child, William Campbell, and Edith left nine children, unnamed in the will. The four who survived testatrix received income under their life interests.

One of these, Elmer, died in 1956, and the trust consequently terminated as to one-fourth of the principal. It is this fund that is now before us. The auditing judge decreed distribution per stirpes and dissented when the court in banc sustained exceptions and decreed distribution per capita. Elizabeth McCool Salony and William Campbell have appealed.

We believe that the court in banc was right in treating all eleven first cousins alike.

The words "share and share alike" look both ways: alone, they might mean eleven shares or three. Such words, as well as the "and" series in the last sentence of the quoted section of the will, have been interpreted variously. So have "among", "between", "divided equally", "equal parts", and the like.

[ 395 Pa. Page 398]

For example, in Dible's Estate, 81 * Pa. 279 (1875), where the gift was to be "equally divided amongst my three last-named sons, my two daughters and grandchildren, share and share alike", it was held that the equalizing words were "all thrown into a single expression, as it were, at one breath", and that a division per capita was proper, although the beneficiaries, all of the testator's blood, stood in different degrees of relationship to him. The same situation existed, even to the equalizing words, in Minter's Appeal, 40 Pa. 111 (1861), but in addition the copulative word "and" was used. This court held that the testamentary scheme was doubtful but seemed to create separate classes, and accordingly applied the statutory scheme of division per stirpes. As usual, there are as many interpretations as there are wills.

Appellants admit, and properly, that the cases involving varying degrees of kinship are not in point, since in the instant case not only are all takers in the same degree to the testatrix and to each other but they are also related to her only by affinity and not by blood. This admission distinguishes appellants' precedents, which reveal different levels of kinship or else other indications in the will that separate classes were intended. These are Fissel's Appeal, 27 Pa. 55 (1856); Risk's Appeal, 52 Pa. 269 (1866); Green's Estate, 140 Pa. 253 (1891); Ashburner's Estate, 159 Pa. 545 (1894); Hiestand v. Meyer, 150 Pa. 501 (1892); Wood Estate, 154 Pa. Superior Ct. 628 (1944); Moore Estate, 157 Pa. Superior Ct. 296 (1945); Young Estate, 181 Pa. Superior Ct. 468 (1956).

The law prefers a per capita division when nothing to the contrary appears: 2 Jarman on Wills 756. This court, in Risk's Appeal, supra (52 Pa. 269) read the whole will and judged it ex visceribus, saying: "If similar words in other wills have been interpreted devises

[ 395 Pa. Page 399]

In sum, we regard this testamentary structure as having two levels and only one elevator. When each of the four portions falls in by death, the elevator carries it to the level below in eleven parts. Ex visceribus, this seems to us the clear plan of the will.


The decrees are affirmed at the cost of appellants.


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