Appeal from decree of Orphans' Court of Montgomery County, of 1969, No. 70446, in case of Estate of Margaret Deal Heppe, deceased.
Dallett Hemphill, with him Alexander Hemphill, for appellant.
Dunstan McNichol, with him Anthony B. Agnew, Jr., and Gilfillan, Gilpin & Brehman, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this dissent.
Margaret Deal Heppe died on February 17, 1968, leaving a will dated June 19, 1964, a codicil dated October 11, 1965, and a second codicil dated November 30, 1967. All were duly probated by the Register of Wills of Montgomery County. The decedent's will contained
various specific legacies to each of her three sons, and left the residue of the estate to her three sons generally. The first codicil contained one pecuniary legacy to appellant, expressed as follows: "Before the disposition of the residue of my estate I give and bequeath the sum of Five Thousand Dollars ($5,000.00) to my faithful employee, Leonard Jerry Dunnigan, provided he survives me and is in my employ at the time of my death."
The second codicil, drawn more than two years later by a different scrivener, contained a number of gifts to the decedent's grandchildren and daughters-in-law, an administrative provision, and the following bequest: "Fourth: I give and bequeath to Leonard J. Dunnigan for long and faithful service, if he should survive me the sum of Five Thousand Dollars ($5,000.00)."
The named legatee, Leonard J. Dunnigan, survived the testatrix and was in her employ as a domestic servant and cook at the time of testatrix's death. The executor of the estate paid Dunnigan only $5,000. Dunnigan then presented a claim for the additional $5,000 legacy at the audit before the Orphans' Court Division of the Court of Common Pleas of Montgomery County. That court heard evidence on Dunnigan's claim, including testimony from the scrivener of the second codicil -- to which appellant Dunnigan failed to object -- and entered an adjudication on October 22, 1969, that the second codicil was not cumulative but a mere repetition of the language in the first codicil.
Appellant took six exceptions to the adjudication, of which, two concerning the question whether both requests required that the legatee be an employee of the decedent at her death were sustained pro forma. In his opinion sur exceptions on December 9, 1969, the auditing judge noted that only the first bequest to appellant Dunnigan so required. The auditing judge,
however, reasoned that this error should not affect his earlier adjudication, for the strong similarities between the two bequests indicated that they were repetitious. Appellant then took this appeal on the issues of whether the intrinsic evidence in both codicils is sufficient to overcome a presumption that such legacies are cumulative, and whether the auditing judge erred in hearing testimony from the ...