No. 564 January Term, 1977, No. 566 January Term, 1977, Appeal from the Decree entered June 29, 1977, of the Court of Common Pleas of Philadelphia, Pennsylvania, Orphans' Court Division, at No. 3416 of 1974.
Charles H. Dorsett, Doylestown, for appellant at 564 and appellee at 566.
Paul C. Heintz, Philadelphia, for appellee at 564 and appellant at 566.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., and O'Brien, J., did not participate in the decision of this case. Eagen, C. J., and Larsen, J., dissent.
On November 3, 1974, Clarence E. Bertolet died leaving a will which divided his estate between his wife, Ethel O. Bertolet, and his son by a previous marriage, William H. Bertolet. Under the will executed on June 25, 1962, Clarence bequeathed to his wife the household furnishings and other personalty. To his son he bequeathed all his personal effects, including his jewelry, and "all stock in excess of 485 1/2 shares of the Laurel Soap Company . . . ." Testator placed the residue of his estate into two trusts and named his executors, William H. Bertolet and Frankford Trust Company, as trustees. Trust "A," for the benefit of testator's wife, was to consist of that portion of the value of his estate which, when added to the value of the specific bequest to her, would achieve the maximum federal estate tax deduction under the law applicable at his death. The balance of the estate was to be placed in Trust "B" for testator's son. Testator's will also included a clause directing that all death taxes be paid from the residuary estate.
On December 11, 1974, the widow filed her election to take against her husband's will. Because testator was survived
by only one child, she was entitled to one-half of his estate.*fn1 Relying upon this Court's decision in Neamand Estate, 456 Pa. 22, 318 A.2d 730 (1974), the widow claimed that she was entitled to receive the benefit of the pay-tax clause in her husband's will and that therefore taxes attributable to her statutory share should be paid out of the residuary estate.
We are now asked to decide two questions: whether the pay-tax clause in testator's will clearly and unambiguously expresses an intent to remove the burden of taxation from his wife's elective share; and, if so, whether an amendment to 20 Pa.C.S.A. § 3703(a) enacted twenty months after testator's death can deprive the widow of the benefit of that pay-tax clause.*fn2
The auditing judge in the Orphans' Court Division of the Court of Common Pleas of Philadelphia decided both issues in the widow's favor. In reviewing the exceptions to that adjudication the orphans' court en banc agreed that the pay-tax clause clearly showed testator's intent to protect his wife's elective share from taxation. The court en banc concluded, however, that ...