Appeal from decree of Court of Common Pleas of Lycoming County, Nov. T., 1965, No. 49, in re estate of James S. Erieg, deceased.
Scott A. Williams, with him Furst, McCormick, Lynn, Reeder & Nichols, for appellant.
John C. Youngman, Jr., and Harry R. Gibson, with them Candor, Youngman, Gibson & Gault, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
James S. Erieg died testate on November 4, 1965. His will provided, inter alia:
"Item I. I give all my tangible personal property (not including cash and securities) and my insurance thereon to my wife, Claire W. Erieg.
"Item II. I give the residue of my estate, of whatsoever kind and wheresoever situate, as follows: (a) Sixty-seven (67) per cent thereof to my wife, Claire W. Erieg; (b) Thirty-three (33) per cent thereof to my niece, Jane Levering Laher.
"Item IV. All taxes and interest and penalties thereon payable by reason of my death with respect to property comprising my gross taxable estate, whether or not passing under this Will, shall be paid from my residuary estate."
The executor submitted a statement of proposed distribution in which it indicated its intention to wind up the affairs of the Erieg estate by distributing $118,048.01 to Claire W. Erieg and $33,604.26 to Jane Levering Laher.*fn1 Jane Laher filed objections to the proposed
distribution, asserting that a disproportionate share of the estate's tax liability had been charged against her part of the estate. She based her claim on Item IV of the Will, which she interpreted as requiring the payment of all taxes from the principal of the residue before computation of the residuary legatees' shares.*fn2 The executor disagreed with Jane Laher's ...