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ESTATE J. A. FOX (07/10/81)

decided: July 10, 1981.

IN RE ESTATE OF J. A. FOX, DECEASED. APPEAL OF GALLATIN NATIONAL BANK


No. 80-1-156, Appeal from the Decree of the Court of Common Pleas of Washington County, Orphans' Court Division, No. 63-78-90

COUNSEL

Mark Vita, Patrono, Ceisler, Edwards & Pettit, Washington, for appellant.

Ralph Christenson, Greenlee, Richman, Derrico & Posa, Washington, for Lucy McCoy.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., concurred in the result.

Author: Nix

[ 494 Pa. Page 586]

OPINION

This is an appeal from a final decree of the Orphans' Court Division of the Court of Common Pleas of Washington County denying exceptions to a decree nisi. The sole issue presented is whether a specific devise of real estate, which was sold during the period of a testator's incompetency,*fn1 includes the interest income which accrued on the proceeds of the sale from the date of sale to the date of testator's death. Unlike the Orphans' Court, we conclude that the interest income is not included.

On April 10, 1971, J. A. Fox (testator) executed a will devising certain real property, known as 3 Baltimore Avenue, to appellee, Lucy McCoy. Along with the property, Mr. Fox left appellee all of the household goods and furnishings therein as well as all insurance policies insuring the property or the proceeds from such policies.*fn2 Additionally, the will also provided that the residue of testator's estate was to be held in trust by appellant, Gallatin National Bank (Bank), for testator's wife, son and two granddaughters. The trust was to remain in existence during the lives of the wife and son, but was to terminate upon the death of the survivor of the wife or son.

[ 494 Pa. Page 587]

The gift to appellee of the real property, known as 3 Baltimore Avenue, was clearly a specific devise. A specific bequest or devise is a gift by will of a specific article or other property, real or personal, which is identified and distinguished from all other things of the same kind, and may be satisfied only by delivery of the particular thing. Estate of Taylor, 480 Pa. 488, 494 n. 4, 391 A.2d 991, 994 n. 4 (1978); Soles' Estate, 451 Pa. 568, 304 A.2d 97 (1973); Beatty v. Hottenstein, 380 Pa. 607, 112 A.2d 397 (1955); Wood's Estate, 267 Pa. 462, 110 A. 90 (1920); Snyder's Estate, 217 Pa. 71, 66 A. 157 (1907). The general rule is that a specific devise will be adeemed if at testator's death the testator no longer possessed an interest in the property devised and no contrary intention is set forth in the will. Estate of Taylor, supra; Nakoneczny Estate, 456 Pa. 320, 319 A.2d 893 (1974).

[ 494 Pa. Page 588]

It has long since been decided in this jurisdiction that a specific legacy or devise is extinguished if the property is not in existence or does not belong to the testator at the time of his death. Soles' Estate, 451 Pa. 568, 304 A.2d 97 (1973); 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); Hoke v. Herman, 21 Pa. 301 (1853); Blackstone v. Blackstone, 3 Watts 335 (1834). Testator's intent is not relevant where the property devised or bequeathed in his will is not part of his estate at death. Where the legacy has been determined to be specific '[t]he legatee is entitled to the very thing bequeathed if it be possible for the executor to give it to him; but if not, he cannot have money in place of it. This results from an inflexible rule of law applied to the mere fact that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator.' Horn's Estate, supra, 317 Pa. at 53, 175 A. 414; Hoke v. Herman, supra, 21 Pa. at 305. See also, Harshaw v. Harshaw, supra; Pruner's Estate, 222 Pa. 179, 70 A. 1000 (1908). This rule is equally applicable where the specifically devised or bequeathed property is removed from testator during his lifetime by an involuntary ...


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