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THAW ESTATE. (05/11/64)

May 11, 1964

IN RE THAW ESTATE.


Appeals, Nos. 69, 105, 106, 107, 117 and 119, March T., 1964, from decree of Orphans' Court of Allegheny County, No. 63 of 1959, in re estate of Jane Olmsted Thaw, deceased. Decree reversed.

COUNSEL

Stephen E. Nash, with him J. Garfield Houston, Henry V. Blaxter, Jr., and Blaxter, O'Neill, Houston & Nash, for appellants.

Sebastian C. Pugliese, Jr., Assistant United States Attorney, with him Gustave Diamond, United States Attorney, for United States of America, appellant.

James Craig Kuhn, Jr., with him Wilner, Wilner & Kuhn, for Koussevitzky Music Foundation, Inc., appellant.

James M. Arensberg, with him Patterson, Crawford, Arensberg & Dunn, for University of Pittsburgh, appellee.

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

Author: Jones

[ 414 Pa. Page 349]

OPINION BY MR. JUSTICE JONES

These appeals raise four questions:*fn1 (1) against whom are the death taxes chargeable under the provisions of this will? (2) are twenty-eight pecuniary legatees, whose legacies were delayed in payment, entitled to payment of interest on their legacies? (3) whether the Library of Congress Trust Fund Board (Board), to whom, by reason of a stipulation, a partial distribution of one pecuniary legacy will be made, has a standing to appeal? (4) if the Board has standing, is the Board exempt by law from the payment of death taxes on the amount of the legacy awarded to it?

Resolution of the first two questions depends upon a construction of the last will of Jane O. Thaw (testatrix), who died, a New Hampshire resident, on November 28, 1958, leaving assets in New Hampshire of upwards of $580,000, and assets in Pennsylvania of upwards of $1,600,000.

An examination of testatrix' twelve-paragraph lawyer-prepared will must be made. The first six paragraphs provide for disposition of certain personalty, disposition of testatrix' home in Dublin, New Hampshire and personalty connected therewith, for payment of twenty specific-dollar-amount legacies totaling $588,000, and directions for testatrix' burial. The last

[ 414 Pa. Page 350]

    three paragraphs provide the manner of sale of testatrix' realty and personalty, the power of the executors and trustees to make investments and the exercise of powers of appointment. A codicil, made several years after the will, does not materially aid in the construction of the will. In construing this will, we must consider Paragraphs Seven, Eight (h) and Nine (a), (c).

The Seventh paragraph, crucially important in this litigation, provides: "All the rest, residue and remainder of [her] property, real and personal, wherever situate, and all property over which [she had] any power of appointment" the testatrix gave to named trustees in trust for the utilization of the net income, in part or whole, for the support of testatrix' aunt during her lifetime; upon the aunt's death, the trustees were directed to distribute the principal, undisbursed income and "all other property" of testatrix in the following manner: to pay twenty-eight specific-dollar legacies, totaling $420,000, to certain named persons, charitable institutions, foundations, etc. (Paragraph Seven, (1) to (28), inclusive), and to distribute "the entire balance of said trust fund" to Pittsburgh University (University), as a memorial to testatrix' husband to be used for research in blood diseases, particularly leukemia (Paragraph Seven, (29)).

In Paragraph Eight, (h), testatrix directs "... that so far as possible all taxes which may be payable with respect to any legacy given by this will shall be paid out of the residue of [her] estate." (Emphasis supplied). In Paragraph Nine, (a), testatrix directs that, if her estate is insufficient to pay the testamentary bequests, all bequests other than those given in Paragraph Seven shall be paid in full and that each bequest in Paragraph Seven shall abate proportionately. Paragraph Nine, (c), provides that if "any ...


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