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SOLES ESTATE (05/04/73)

decided: May 4, 1973.

SOLES ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 3129 of 1968, in re estate of Marguerite D. Soles, a/k/a Marguerite Della Soles, a/k/a Della M. Soles, deceased.

COUNSEL

Harvey A. Miller, with him Charles O. Parks, and Miller & Miller, for appellants.

Mord C. Taylor, Jr., with him Ruby, Nescott and Taylor, submitted a brief for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones, Mr. Justice Roberts, Mr. Justice Nix, and Mr. Justice Manderino concur in the result.

Author: Pomeroy

[ 451 Pa. Page 569]

Marguerite D. Soles died testate on July 3, 1968, approximately one and a half months after the death of her husband Herbert A. Soles. Her will was probated on July 9, 1968 and a decree of distribution entered on May 18, 1972.*fn1 This appeal was taken by the Hawks, husband and wife, who are cousins of the decedent and are residuary legatees under the will.*fn2

The dispute arises out of the following language of the will of Marguerite D. Soles:

"Third: Should my husband predecease me, then I direct that my estate, as above mentioned, be distributed as follows:

"(b) To Mrs. Nettie Anderson, of 947 Fawcett Avenue, McKeesport, Pennsylvania, I bequeath one hundred and thirty (130) shares of the stock of the

[ 451 Pa. Page 570]

General Motors Corporation." At the time of her death, the testatrix owned only thirty shares of General Motors stock. Finding the terms of the bequest, as quoted above, to be unambiguous and therefore refusing to look beyond the language of the will to ascertain the donor's intent, the court below decreed not only the existing thirty shares to Mrs. Anderson, but also awarded her the present value of the missing one hundred shares. Exceptions to the decree by the Hawks were overruled, and this appeal followed.

The appellants contend that Mrs. Anderson is entitled to receive only those thirty shares of General Motors stock which the testatrix actually owned at the time of her death. The orphans' court division understood this contention to be based on a theory of mistake in the use of the figure "one hundred and thirty" instead of "thirty", since in fact neither Mrs. Soles nor her husband (from whom she inherited the stock) had ever owned more than thirty shares of General Motors stock. We, however, see the question presented both in this court and below as one of ademption. If the bequest to Mrs. Anderson was a specific bequest, then the testamentary gift of one hundred and thirty shares of General Motors stock has adeemed to the extent of the missing one hundred shares. McFerren Estate, 365 Pa. 490, 76 A.2d 759 (1950); Horn's Estate, 317 Pa. 49, 175 A. 414 (1934); Harshaw v. Harshaw, 184 Pa. 401, 39 A. 89 (1898). If, however, the bequest is held to be a general one, then Mrs. Anderson is entitled both to the thirty shares owned by Mrs. Soles ...


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