Appeal from decree of Orphans' Court of Berks County, No. 53060, in re estate of William E. Klein, deceased.
Donald K. Bobb, with him George B. Balmer, Sidney L. Wickenhaver, and Balmer, Kershner, Mogel & Speidel, and Montgomery, McCracken, Walker & Rhoads, for appellant.
Jan L. Deelman, with him Levan and Deelman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno dissents.
On December 23, 1953, the decedent, William E. Klein, executed his will. This will created two trusts, each to contain one-half of the residue of his estate after payment of taxes. Decedent's then wife, Mabel E. Klein, was given a life estate in one of the trusts with a power of appointment. The second trust provided for a life estate in Kathryn J. Grier with a limited power to consume, a successor life estate in Mabel L. Klein and then remainder interests to four specified charities. Decedent also created on December 23rd a revocable life insurance trust under which Mabel L. Klein had a life estate, Kathryn J. Grier had the next successor life estate and Gertrude Jordan (decedent's sister) had a second successor life estate with a remainder to the same four charities as were named in decedent's will.
Decedent's marriage to Mabel Klein terminated in a divorce on January 7, 1957. He then executed a codicil to his will dated January 23, 1957 amending his 1953 will to leave the entire residue of his estate to Kathryn J. Grier for life (with a limited power to consume), a successor life estate to Gertrude Jordan and
a remainder to the four charities. On the same date decedent's life insurance trust was amended by eliminating the life estate for Mabel Klein, making Kathryn J. Grier the initial life beneficiary and giving a successor life estate to Gertrude Jordan with remainders to charity. Decedent and Kathryn Grier were married in September of 1960; prior thereto (on August 31, 1960) decedent and Kathryn Grier executed an antenuptial agreement, the validity of which is not here disputed. This antenuptial agreement provided that Kathryn Grier was entitled to one-half of decedent's estate. The only testamentary instruments executed by decedent were the will of 1953 and the codicil of 1957.
The auditing judge below concluded, inter alia, in his adjudication (1) that Kathryn J. Klein (nee Grier) was entitled only to that portion of decedent's estate given to her pursuant to the antenuptial agreement and was precluded from taking a life interest in the residuary trust estate, (2) that the cemetery lot owned by decedent was properly included as an asset of the estate and (3) that the interest on a payment made by the executor to cover a federal tax deficiency represents a distribution to Kathryn J. Klein on account of her interest as a creditor in the estate. Each of these conclusions is attacked in this appeal.
Appellant, the now Mrs. Klein, insists that she is entitled to both one-half of decedent's estate (as provided in the antenuptial agreement) and a life estate in the remaining half (under the codicil of 1957). She cites as support the following general rule found in Annot., Spouse's Right To Take ...