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GREATHEAD ESTATE (11/28/67)

decided: November 28, 1967.

GREATHEAD ESTATE


Appeal from order of Orphans' Court of Delaware County, No. 910 of 1965, in re estate of Alice M. Greathead, deceased.

COUNSEL

Henry Thomas Dolan, with him Catello Pizza, for appellant.

Paul Maloney, with him George M. Kevlin, Robert E. Porter, James R. Ledwith, Melvin G. Levy, David H. W. Dohan, and Pepper, Hamilton & Scheetz, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno and Mr. Justice O'Brien join in this concurring Opinion. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Eagen join in this dissenting opinion.

Author: Per Curiam

[ 428 Pa. Page 554]

The Court being equally divided, the Order is affirmed, each party to pay own costs.

Disposition

Order affirmed.

Concurring Opinion by Mr. Chief Justice Bell:

I agree with the Order of the lower Court and with the Per Curiam decision of this Court, but believe it is advisable to set forth at length the reasons which, beyond any doubt, justify and necessitate an affirmance of the Order of the Orphans' Court.

The question involved is whether a legatee of 200 shares of Smith, Kline & French*fn1 stock was entitled to that exact number of shares or to *fn5002 shares which resulted from a 3-to-1 stock split, after testatrix had made her will.

This question arose at the audit of the executor's account in the Estate of Alice M. Greathead. The Orphans' Court decided that St. Giles Church, which was

[ 428 Pa. Page 555]

    bequeathed 200 shares of the common stock of SKF was entitled only to 200 shares of this stock and not to an additional *fn3003 shares, which the testatrix had received as a result of the 3-to-1 stock split after her will was executed but before her incompetency. From the Court's final Order the Church took this appeal.

In Houston Estate, 414 Pa. 579, 201 A.2d 592, the pertinent principles of law are stated on pages 586-587: "In Lewis Estate, 407 Pa. 518, 180 A.2d 919, the Court (quoting from Burleigh Estate, 405 Pa. 373, 376, 175 A.2d 838), recently said (page 520): '"It is now hornbook law (1) that the testator's intent is the polestar and must prevail [if it is not unlawful];*fn4 and (2) that his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, or the testator's intent is for any reason uncertain: Dinkey Estate, 403 Pa. 179, 168 A.2d 337; Pruner Estate, 400 Pa. 629, 162 A.2d 626; Wanamaker Estate, 399 Pa. 274, 159 A.2d 201; Hope Estate, 398 Pa. 470, 159 A.2d 197."'

". . . '"' it is not what the Court thinks he might or would or should have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words. Kelsey Estate, 393 Pa. 513, 143 A.2d 42; Britt Estate, 369 Pa. 450, 87 A.2d 243; Sowers Estate, 383 Pa. 566, 119 A.2d 60; Cannistra Estate, 384 Pa. 605, 121 A.2d 157.' Saunders Estate, 393 Pa. 527, 529, 143 A.2d 367. ...


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