Appeal from decree of Orphans' Court of Washington County, No. 124 of 1959, in re estate of Sarah Thornton, deceased.
Paul A. Simmons, with him Tempest & Simmons, for appellant.
No argument was made nor brief submitted for appellee.
Bell, C. J., Musmanno, Jones, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones.
Sarah Thornton (testatrix), by will, devised: (1) property located at 416 Marne Avenue, Monongahela, known as Lot 1, to her daughter, Eugenia T. Dumas; (2) property located at 508 Marne Avenue, Monongahela, known as Lot 2, to her son, Junius Thornton; (3) property located at 90 Third Avenue, Monongahela, known as Lot 3, to her grandson, Norman Thornton,*fn1 for life and, upon his death, the remainder to his two children, Gertrude and Michael Thornton.*fn2
Testatrix' personal estate was insufficient to pay her debts and administration expenses and it became necessary to sell testatrix' three pieces of realty; such realty was sold with court permission. After the payment of testatrix' debts and administration expenses and at the audit of the estate, the question was raised whether, under § 751(2) of the Fiduciaries Act of 1949,*fn3 the gift to testatrix' grandson, Norman Thornton, and his children should be abated in favor of the gifts to testatrix' children, Eugenia Dumas and Junius Thornton.
The Orphans' Court of Washington County decreed that the amount necessary for the payment of testatrix' debts and administration expenses should be
pro rated between the three devisees in proportion to the ratio of the prices received for each property separately at the sales to the total amount received from all sales. From that decree Mrs. Dumas has appealed.
The gravamen of the controversy lies in the meaning of the word "issue" under § 751, supra. Section 751 provides, inter alia:
"(a) General rules. Except as otherwise provided by the will, if the assets are insufficient to pay all claimants and distributees in full, the shares of distributees, without distinction between real and personal estate, shall have priority of distribution in the following order: (1) Property specifically devised or bequeathed to or for the benefit of the surviving spouse; (2) Property specifically devised or bequeathed to or for the benefit of the decedent's issue ; ...