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LAMB ESTATE (12/20/71)

decided: December 20, 1971.

LAMB ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, No. 3550 of 1970, in re estate of Marie A. Lamb, a/k/a Marion Lamb, deceased.

COUNSEL

William L. Kinsley, with him Edward Davis and Howard J. Casper, for appellant.

Walter B. Gibbons, with him George S. Forde, Jr., for appellees.

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

Author: Roberts

[ 445 Pa. Page 324]

This appeal requires that we determine whether the specific devise of a house "including the contents thereof, absolutely" is a gift of not only the furniture and furnishings but also of three savings accounts, a checking account, three savings bank certificates and uncashed checks payable to testatrix. These latter items, all found in the home, amount to $46,140.63, and constitute a substantial part of the estate.

Testatrix, Marie A. Lamb, died April 27, 1971, leaving a will dated October 22, 1968, which was duly admitted to probate. The sole specific bequest in the will devised the "property 4907 Cedar Avenue . . . including the contents thereof, absolutely" to her nephew; the residuary estate was bequested in equal shares to five named charities.

The nephew-appellant claims that testatrix' gift to him of the contents of the house included the savings and checking accounts, the savings bank certificates and the uncashed checks. The charities-appellees contend that these bank items are not part of the "contents" of the house and are properly includable in the residuary clause. The court decreed distribution of these assets to the appellees. Appellant filed exceptions

[ 445 Pa. Page 325]

    which were denied by the court en banc. This appeal followed. We affirm the adjudication of the orphans' court.

It is well settled that ". . . the duty of the court is to ascertain, if possible, the intent of the testator . . ." and ". . . the court must garner, if possible, the intent of the testator from a consideration of all the language contained in the four corners of the will, together with all the surrounding and attendant circumstances and from the scheme of distribution and not merely from isolated clauses or provisions of the will. . . ." Hill Estate, 432 Pa. 269, 272, 247 A.2d 606, 608-09 (1968) (emphasis in original); Schappell Estate, 424 Pa. 390, 392, 227 A.2d 651, 652 (1967); Vandergrift Estate, 406 Pa. 14, 26, 177 A.2d 432, 438 (1962).

The testatrix clearly manifested an intent to leave her nephew a specific devise and the residuary estate to the five named charities. If appellant's construction of the will is correct, he will receive practically the entire estate and the testatrix's charitable intention as expressed in the residuary clause would be meaningless and ineffective. Furthermore, the testatrix specifically directed that all estate and inheritance taxes be borne by the "general estate" and all "legacies, devises and other gifts of principal and income" to her beneficiaries, be free of such taxes. Under appellant's construction of the will, testatrix's tax direction would be frustrated since no assets would be left to satisfy these tax obligations. To give meaning to the residuary clause and the allocation of the tax burden, appellant's construction of the phrase "including the contents ...


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