is as to the division of the money between them. How much of the fund in the Court is each entitled to? The evidence was that Harry Tome was not cultivating or farming the homestead and there was no income from the premises. He had remodeled the dwelling house and has been residing there with his family. Donna Lee left the property soon after her marriage and has not returned. It seems to this Court that fairness and equity requires that the income be divided among the parties during Donna Lee's lifetime.
There is some contention made that the distribution should not be made by this Court but by the Orphans Court of Warren County, Pennsylvania. I disagree. Under Pennsylvania law, Fiduciaries Act of 1949, Section 104 provides:
'Legal title to all real estate of a decedent shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by this act and lawfully by the will and to all orders of the court.'
Also Section 501 of the same Act provides:
'A personal representative shall have the right to and shall take possession of, maintain and administer all the real and personal estate of the decedent, except real estate occupied by an heir or devisee.'
It is undisputed in this case that the executor who is Harry Tome did not take any steps to take possession of the property in order to pay decedent's debts. He was required to do that under the will and apparently has done so as there are no liens against the real property.
In conclusion, it appears that considering the life estate vested in the granddaughter this Court should direct that the funds in the Registry of the Court be held by a trustee to invest and reinvest pursuant to the laws of Pennsylvania with the net income to be divided between Donna Lee Malone Valentine and Harry Tome. Harry Tome was born on April 27, 1922. The granddaughter, his niece, is younger. Should she survive Harry Tome, her uncle, then she would be entitled to the income from the whole of the fund for her life with the remainder to be distributed under the will of Harry Tome or under the intestate laws. It will, therefore, be directed that the fund be held by the trustee to be accounted for and distributed finally on the death of the life tenant, Donna Lee Malone Valentine, under the direction of the Orphans Court of Warren County, Pennsylvania.
I, BESSIE M. TOME, of the Township of Corydon, County of Warren, and State of Pennsylvania, being of sound and disposing mind, memory, and understanding, do hereby make, publish, and declare this to be my Last Will and Testament, hereby revoking and making null and void any and all wills heretofore made by me.
I give and devise to my son, Edwin Tome, any land or premises in Elk Township, Warren County, Pennsylvania, which I own at the time of my decease.
I give and devise to my daughter, Luella Tome, and to my grand-daughter, Donna Lee Malone, a life estate in my homestead located on the easterly side of the River Road in Corydon Township provided, however, that said life estate to each of the aforesaid parties shall not deprive my son, Harry Tome, from occupying said premises at the same time that they are occupied by said life tenants.
I give and bequeath to my granddaughter, Donna Lee Malone, the household goods and furnishings in my said home.
All the rest, residue and remainder of my said estate, including the premises in which I have created a life estate in Luella Tome and Donna Lee Malone, I give, devise, and bequeath to my son, Harry Tome, subject, however, to the payment by the said Harry Tome of the funeral expenses of Luella Tome and of this Testatrix Bessie M. Tome. I hereby make the payment of the funeral expenses of the said Luella Tome and of this Testatrix a charge upon my homestead premises.
I nominate, constitute, and appoint my said son, Harry Tome, to be Executor of this my Last Will and Testament.
IN WITNESS WHEREOF, I, BESSIE M. TOME, the Testatrix above-named, have hereunto subscribed my name and affixed my seal this Third day of May, A.D. 1950.
Bessie M Tome. (SEAL)
Signed, sealed, published and declared by the above-named Testatrix as and for her Last Will and Testament, in the presence of us who, at her request, and in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto.
Harold S. Hampson
Florence O. Lund
Bessie M Tome. (SEAL)
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