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BURSTIN ESTATE (11/11/69)

SUPREME COURT OF PENNSYLVANIA


decided: November 11, 1969.

BURSTIN ESTATE

Appeal from decree of Orphans' Court of Allegheny County, No. 5322 of 1966, in re estate of Albert Burstin, deceased.

COUNSEL

Benjamin Jacobson, for appellant.

Marvin S. Lieber, with him Robert Engel, Ben Paul Brasley, Donald L. McCaskey, Alan Bruce Bowden, and Berkman, Ruslander, Pohl, Lieber & Engel, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellees.

Bell, C. J., Jones, Cohen, Eagen, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice O'Brien took no part in the consideration or decision of this case.

Author: Bell

[ 436 Pa. Page 164]

Albert Burstin died testate on December 7, 1966, having executed his will on February 6, 1960. In the third paragraph of his will, he provided: "Third: I give, devise and bequeath, my interest*fn* in the building located at 135-137 West Grant Avenue, Duquesne, Pennsylvania, said interest being a one-half interest, unto Louis Keough."

Keough was a business associate, and not a blood relative. He was made a co-executor and was appointed to supervise the collection of rents and the maintenance of testator's real estate. Moreover, in the second paragraph of testator's will, he gave a one-half interest to Keough in his real estate and insurance business. The second paragraph provides: "Second: I give, devise and bequeath, my real estate and insurance business, known as, Burstin Realty, situate 137 West Grant Avenue, Duquesne, Pennsylvania, together with all office equipment, unto the following persons,

[ 436 Pa. Page 165]

Section 14 of the Wills Act of 1947, upon which appellant relies, sets forth the following rules of interpretation:

" In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules:

"(1) Wills construed as if executed immediately before death. Every will shall be construed, with reference to the testator's real and personal estate, to speak and take effect as if it had been executed immediately before the death of the testator.

"(2) After-acquired property. The real and personal estate acquired by a testator after making his will shall pass by a general devise or bequest." Act of April 24, 1947, P. L. 89, ยง 14(1) and (2).

The aforesaid statutory provisions with respect to "after-acquired property" can have no application in this will because a contrary intent appears in the will, namely, a clear and specific description of the interest which testator devised to appellant -- " my interest in the building . . . said interest being a one-half interest. . . ." This was further confirmed by the exclusion in the thirteenth paragraph of his will, in which he created a charitable trust the funds of which were to consist of "the income from all my other properties (excluding, of course, property at 135-137 West Grant Avenue, Duquesne, which I have bequeath [sic] to Louis Keough, and also excluding the other properties specifically bequeathed) . . . ." It is clear from the hereinbefore mentioned provisions of his will, and particularly from the third and thirteenth paragraphs of his will, that he gave and intended to give to his friend, Louis Keough, only his one-half interest in the West Grant Avenue property.

Decree affirmed; appellant to pay costs.

Disposition

Decree affirmed.


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