Appeal from decree of Orphans' Court of Allegheny County, No. 5054 of 1966, in re estate of Edward T. Hill, deceased.
John V. Snee, for appellants.
James S. Crawford, III, with him Thorp, Reed & Armstrong, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Musmanno did not participate in the decision of this case.
On this appeal we are called upon to interpret the language contained in the last will of Edward Hill (testator) who died November 12, 1966 survived by an aunt and two first cousins, children of a deceased aunt (appellants).
On November 24, 1942, testator, then 37 years of age, married Kathryn C. McCabe, then 36 years of age; of that marriage no children were born. Approximately one and one-half years after the marriage, testator -- without the help of a lawyer -- drew the will now before us. On April 28, 1966, Kathryn C. Hill died; the testator died approximately seven and one-half months later.
Testator's will provided: "(1) If at my demise I have no heirs other than my dear wife Kathryn C. Hill I wish to set up a trust the income from which to go to her as long as she has no other means of support or remains unmarried. [At this point in the will, a bank was named trustee]. When her death or remarriage occurs I direct that the same go to my Alma Mater, Bucknell University at Lewisburg, Pa. (Both estate and income from same). To be used as the University Board of Directors so desires. (2) If at my demise I have more heirs than my dear wife Kathryn C. Hill I direct that my entire estate go to her solely." Testator then named a bank as executor.
At the audit of testator's estate before the Orphans' Court of Allegheny County, both Bucknell University
and appellants claimed distribution of the balance of the estate.*fn1 The record simply reveals a stipulation by the parties as to the dates of birth, the date of marriage and the dates of death of testator and his wife. There is nothing of record to show whether testator's wife was ever pregnant, whether she could have borne children or could have anticipated a child of her marriage to testator.
After legal arguments, the court (Judge Rahauser) entered a decree nisi awarding the balance of the estate to Bucknell University (Bucknell). Exceptions to this decree were dismissed by the court en banc (Judge Kramer filing a dissenting opinion) and a final decree was entered from which the instant appeal was taken.
The initial question presented is whether the testator used the word "heirs" in its legal sense or in its ...