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HAMILTON ESTATE (11/26/73)

decided: November 26, 1973.

HAMILTON ESTATE


Appeal from decree of Court of Common Pleas of Venango County, Aug. T., 1970, No. 31, in the matter of the estate of Edity Y. Hamilton, late of the Borough of Emlenton, County of Venango, Commonwealth of Pennsylvania.

COUNSEL

Ralph J. McAllister, with him McAllister & McAllister, for appellants.

Leo M. Brewster, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts.

Author: Pomeroy

[ 454 Pa. Page 497]

This case concerns the distribution of a testamentary trust created by the will of Edith Y. Hamilton. Testatrix died on October 21, 1943, and by Paragraph Six of her will dated January 2, 1942, gave $10,000 to Oil City National Bank, now Northwest Pennsylvania Bank and Trust Company, in trust, to pay the income therefrom to her niece, Ella Weidle Kerr, for life.

Paragraph Six(e) provides as follows: "Upon the death of my said niece, Ella Weidle Kerr, to pay the principal or corpus of the trust hereby created, as it is then constituted, to such persons as would be entitled to share in the distribution of my estate under the intestate laws of the Commonwealth of Pennsylvania, in force at the date of this will, but applied at the death of said Ella Weidle Kerr, share and share alike."

At the time the will was drawn, the testatrix had three living sisters (Lulu Y. Armstrong, Minta Y. Gartley, and Alma Y. Shaw), one niece (Ella Weidle Kerr) who was the daughter of a deceased sister, and two nephews (C. Gibson Shaw and John A. Shaw), both of whom were the sons of her sister Alma. John A. Shaw then had five children, and Ella Weidle Kerr

[ 454 Pa. Page 498]

    had two (Lorn D. Kerr and Louis Sam Kerr). The life tenant, Ella Weidle Kerr, died on January 28, 1970. Between the date of execution of the will and the date of Ella Kerr's death, the three sisters of the testatrix had died, as had also her grandnephew, Louis Sam Kerr. Three more children had been born to John A. Shaw, but he himself and two of his older children had died. As a result, there were then eight surviving heirs of the testatrix, as follows: one nephew, appellant C. Gibson Shaw; one grandnephew, appellant Lorn D. Kerr, and six grandnephews and grandnieces, the surviving children of John A. Shaw.*fn1

The court below decreed that the trust be distributed in eight equal shares to each of the surviving heirs of the testatrix. The appellants contend that this per capita distribution is contrary to the terms of the will which, in their view, require a distribution per stirpes, thereby allotting to each of them a one-third share and dividing the remaining one-third share equally among the six children of John A. Shaw. For the reasons hereafter given, we have concluded that the lower court was correct, and will therefore affirm.

It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator. If that intent is not evident from the plain meaning of the words of the instrument, then the testator's scheme of distribution and the circumstances surrounding the making of the will are consulted, as well as the ...


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