Appeal from decree of Orphans' Court of Philadelphia County, No. 3243 of 1959, in re estate of Margaret Sommerville, deceased.
Charles M. Solomon, with him Franklin A. Wurman, and Fox, Rothschild, O'Brien and Frankel, for appellant.
Paul Maloney, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
Margaret Sommerville (testatrix), a Philadelphia resident, died on August 28, 1958. On September 3, 1958, her lawyer-drawn will was probated. Thereafter, Margaret Russell, the only child of testatrix, appealed the probate of the will. The will contest which developed eventually reached this Court and we upheld the validity of the will: Sommerville Will, 406 Pa. 207, 177 A.2d 496.
The pertinent portions of the will are: "Item. I give and bequeath to my daughter, Margaret Russell, the sum of Two Thousand ($2,000) Dollars. In the event that my said daughter in any manner contests this my last Will, then the said bequest to her is hereby revoked, and the sum so given to her shall fall into and become a part of my residuary estate, as hereinafter disposed.
"Item. I give and bequeath to my grandson, James, the son of my daughter, Margaret Russell, the sum of One Thousand ($1,000) Dollars.
"Item. All the rest, residue and remainder of my estate, real, personal or mixed, I give, devise and bequeath to Mrs. Martha Elizabeth Guy, of Aldan, Delaware County, Pennsylvania, in consideration of her undertaking to offer me the protection and comfort of her home and to arrange for the necessary funeral ceremonies after my decease.
"Item. I nominate, constitute and appoint Robert F. Lehman of the firm of Fell and Spalding, to be the executor of this my Will. In the event he is still in the armed forces of the United States or for other reason cannot serve as such, then, I appoint Peter Hagan, Esq. of said firm of Fell & Spalding in his place and stead." (Emphasis supplied)
Thereafter, the executor filed his account, an audit was held and an adjudication filed. The executor proposed to the Orphans' Court of Philadelphia County that the bequest of $1000 be paid to testatrix' grandson under the second Item of the will, that the in terrorem clause under the first Item of the will be enforced and that the bequest to testatrix' daughter, who had contested the will, be revoked and the balance of the estate*fn1 be paid to the estate of Martha E. Guy, the residuary legatee named in the third Item of the will.*fn2 After several hearings and rehearings, the court refused to invoke the in terrorem provisions of the first Item of the will, awarded the $2000 bequest to testatrix' daughter, the $1000 bequest to testatrix' grandson and the balance of the estate to the estate of Martha E. Guy, ...