No. 539 January Term, 1977, Appeal from the Decree entered June 7, 1977 of the Court of Common Pleas, Orphans' Court Division, of Luzerne County at No. 1108 of 1967.
Joseph F. Flanagan, Thomas F. Burke, Jr., Wilkes Barre, Luzerne County, for appellants.
Paula G. Bregman, Harry Hiscox, Wilkes Barre, Luzerne County, for appellee, Linnie B. Patrick, executrix U/W of Joseph Patrick, deceased.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
George Patrick died on July 20, 1967 survived by six children. By paragraph Second of his will, testator provided:
"D. All of my real estate situate in Clifton Township, Lackawanna County, and in Wayne County, Pennsylvania to my Executors, hereinafter named, to hold and manage for the benefit of my children and to be sold at such time and in such manner and for such price or prices as my said Executors shall determine to be for the best advantage of the beneficiaries of my estate, and the proceeds divided equally among all of my children and their issue with shares descending among those taking in different degrees in the manner set forth in Section 4 of the Pennsylvania Intestate Act of 1947, as amended."
Joseph Patrick, one of decedent's children, died without issue on August 17, 1971, four years after the death of George Patrick, but approximately six years before the executors distributed the proceeds from the sale of the paragraph D property.*fn1 On January 31, 1975, Linnie B. Patrick, executrix of the estate of Joseph Patrick, filed a claim with George Patrick's estate, for a one-sixth share of the proceeds. The executors of George Patrick's estate (appellants here), denied this claim.
Linnie B. Patrick, (appellee here), filed exceptions to the executors' first and partial account. The orphans' court concluded that the testator intended that Joseph Patrick's interest in the proceeds vest upon testator's death, and that
Joseph's estate is therefore entitled to a one-sixth share of his father's paragraph D property. We are satisfied that the orphans' court applied the correct test for ascertaining the testator's intent and correctly construed the testamentary disposition. Accordingly, we affirm the decree of the orphans' court sustaining the claim of Joseph Patrick's estate.*fn2
In the critical language in paragraph D of the will, testator devised certain real estate "to my Executors . . . to hold and manage for the benefit of my children and to be sold . . . for the best advantage of the beneficiaries of my estate, and the proceeds divided equally among all of my children and their issue. . . ." Appellants contend that by using this language, testator intended that each child, including Joseph, should have an interest contingent upon the child's survival until the date of sale. Because Joseph Patrick died without issue prior to the date of sale, appellants claim that Joseph's estate is not entitled to a share of the proceeds. Appellee and the orphans' court, on the other ...