Appeal from decree of Orphans' Court of Philadelphia County, No. 2397 of 1968, in re estate of Joseph Marks, deceased.
David Freeman, for appellant.
Frank E. Hahn, Jr., with him Obermayer, Rebmann, Maxwell & Hippel, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice O'Brien joins in this dissenting opinion.
Joseph Marks (decedent) died testate October 25, 1967. Under the terms of his will, decedent gave $250.00 to Dale Satterfield and the residue of his estate to one Helen Keashen. On April 19, 1963, decedent executed a codicil wherein he provided: "Contrary to anything in my will I direct that the two certificates attached covering 104 shares of Sears and Roebuck shall be paid over to Dale Wayne Satterfield as a legacy in addition to any sum bequeathed to him in my will." At the time decedent executed this codicil he owned only 104 shares of the Sears and Roebuck stock.
Approximately two years later, Sears and Roebuck split two-for-one its stock and issued to each stockholder a new certificate for the amount of the additional shares. Decedent then owned 208 shares. During the two years and seven months which elapsed between the time of the stock split and his death, decedent made no change in either his will or codicil.
Decedent's counsel was in possession of the will but, after decedent's death, the codicil was found in a safe deposit box to which decedent alone had access. This codicil was in an envelope together with the two certificates representing the original 104 shares which were stapled together and a third certificate representing the additional 104 shares, which certificate showed no evidence of stapling. The record does not reveal whether any of the three certificates were attached to the codicil or whether the papers were folded. The safe deposit box contained, in addition to the codicil and stock certificates, a cemetery deed, a funeral bill for decedent's wife, an insurance policy and some costume jewelry.
The question raised on this appeal is whether Dale Satterfield, in addition to the legacy of 104 shares of Sears and Roebuck stock provided under the codicil,
is entitled to receive the additional 104 shares of Sears and Roebuck stock resulting from the stock split which occurred subsequent to the execution of the codicil. The Orphans' Court of Philadelphia County*fn1 awarded the 104 shares resulting from the stock split to the residuary legatee. The rationale of the decree below was that the legacy to Dale Satterfield was limited to 104 shares, that it was a gift of two certificates and not "of 104 shares" and that decedent had ample opportunity in the period between the time of the stock split and his death to modify the specific bequests in the codicil if he intended to increase the bequest to include the additional 104 shares.
The instant problem is not of first impression in our Court. In McFerren Estate, 365 Pa. 490, 76 A.2d 759 (1950), the facts, insofar as presently pertinent, were as follows: testatrix bequeathed "fifty (50) shares Cheseborough Manufacturing Company Common Stock" to each of two legatees; at the time she executed her will testatrix owned 100 shares of such stock; between the date of her will and the date of her death the corporation split its stock 2 1/2 to 1 and, at the time of testatrix's death, she owned 250 shares. The court below held that, since a will is construed to speak as if executed immediately before death "unless a contrary intention shall appear by the will,"*fn2 the bequest of 50 shares of stock only embraced 50 shares of the exchanged stock. This Court, unanimous in this respect, reversed and awarded each legatee 125 shares of the ...