July 1, 1964
IN RE SMITH ESTATE.
Appeal, No. 78, March T., 1964, from decree of Orphans' Court of Lawrence County, Dec. T., 1961, No. 54, in re first and final account of First National Bank of Lawrence County, executor of estate of Frances A. Smith, deceased. Decree affirmed; reargument refused July 20, 1964.
Lynne A. Warren, with him Joseph R. Doherty Alvah M. Shumaker, and McCloskey, Best & Leslie, for appellants.
James M. Houston, with him Gilbert D. Levine, and Rose, Houston, Cooper & Schmidt, for appellees.
Before Jones, Cohen, Eagen, O'brien and Roberts, JJ.
[ 415 Pa. Page 570]
OPINION PER CURIAM
Decree affirmed. Costs on estate.
ING OPINION BY MR. JUSTICE ROBERTS:
On this record, it is unjust and unnecessary to hold that testatrix's bequest of stock in trust for the benefit of the natural objects of her bounty is wholly adeemed. The majority, in concluding otherwise, fails to give adequate consideration to the mental and physical condition of the ninety-year-old testatrix and to the circumstances at the time she followed the recommendation of her advisor in affixing her mark to a letter directing the sale of the stock (five years after the execution of her will).*fn*
I would hold that the stock was adeemed only pro tanto to the extent proceeds of the sale were used to
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pay taxes on the gain and other expenses of the sale. In my view, the net proceeds ($108,459.17) should be distributed to the trustees for administration under the provisions of the testamentary trust.
"About the time of the stock sale, Mr. Mansell of the bank suggested to Mr. White that if the stock were sold the question of ademption of the legacy in Mrs. Smith's will might arise and that perhaps Mrs. Smith would wish to execute a codicil to her will. Mr. White expressed the view that because it was hard for her to remember the names of all her close relatives and because he thought that she did not know the exact number of shares of stock she owned, she was not competent to make a codicil to her will. No one ever discussed with Mrs. Smith the ademption problem." (Emphasis added.)