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SHERWOOD ESTATE. (06/04/63)

THE SUPREME COURT OF PENNSYLVANIA


June 4, 1963

IN RE SHERWOOD ESTATE.

Appeal, No. 68, Jan. T., 1963, from decree of Orphans' Court of Wyoming County, Book No. 11, page 130, in re first and final account of Walter A. Sherwood, executor of estate of Effie E. Sherwood, deceased. Decree affirmed.

COUNSEL

Davis R. Hobbs, for appellant.

Roy A. Gardner, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 411 Pa. Page 135]

OPINION BY MR. CHIEF JUSTICE BELL

Effie E. Sherwood died February 15, 1960. Her will was executed on December 9, 1954. The bequest which we are asked to interpret, is:

"I give, devise and bequeath unto my grandson, George W. Sherwood, Jr., one twenty-fourth of my estate and to Helen S. Sherwood, widow of George W. Sherwood, if she remains at the time of my death his widow,*fn* one twenty-fourth share of my estate. If Helen S. Sherwood shall have remarried by the time of my death, then and in that case, I give the said one twenty-fourth share unto my remaining five children to be divided among them equally."

When Mrs. Sherwood made her will, her son, George W. Sherwood, was deceased and was survived by his widow, Helen S. Sherwood, the appellant herein, and by his son, George W. Sherwood, Jr. After the execution of the will Helen S. Sherwood remarried,*fn** but eight months later was divorced.

[ 411 Pa. Page 136]

At the audit of the account of testatrix's executor, Helen S. Sherwood claimed one twenty-fourth of the estate under the aforesaid testamentary bequest. She contended that despite the fact that she had "remarried" after the execution of the will and prior to testatrix's death, she was nevertheless unmarried and therefore was the "widow" of George W. Sherwood at the time of testatrix's death. From the Decree of the Orphans' Court, which dismissed her claim, she took this appeal.

Appellant contends that in the above quoted two sentences of the will testatrix created only one condition precedent - that appellant should "remain at the time of [testatrix's] death [George's] widow." The fact that appellant was divorced before testatrix's death, cannot be tortured into meaning that she "remained George's widow at the time of [testatrix's] death," nor can it obliterate testatrix's clearly expressed language and intent that if appellant "shall have remarried by the time of my death, then in that case, I give the said one twenty-fourth share unto my remaining five children ...." Appellant's contentions are utterly devoid of merit.

Disposition

Decree affirmed; costs to be paid by appellant.


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