No. 396 January Term, 1978, Appeal from Decree of the Court of Common Pleas of Montgomery County, Orphans' Court Division
Robert Montgomery Scott, C. Suzanne Buechner, Philadelphia, for appellant.
Lawrence Barth, Deputy Atty. Gen., for Commonwealth.
Ross Weiss, Wyncote, for Whitemarsh Township.
Roger B. Reynolds, and R. Stephen Barrett, Norristown, for Montgomery County.
Philip A. Bregy, Cuthbert H. Latta, Philadelphia, for Toland, Jr., Toland, Drinker, and Ruf.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., filed a dissenting opinion, in which Roberts, J., joins. Roberts, J., filed a dissenting opinion, in which O'Brien, C. J., joins.
This is an appeal from a final decree of the Orphans' Court of Montgomery County construing the will and codicil of Robert Toland ("testator").*fn1 The principal issue presented is whether testator intended to make a gift of certain of his real estate known as "Aubrey" to the entities named in a codicil or whether he intended simply to create a right of first refusal to purchase the property. In a declaratory judgment proceeding initiated by appellants, trustees of
testator's residuary trust ("trustees"), the Orphans' Court concluded that a gift was intended.*fn2 We agree, and accordingly, affirm.*fn3
Testator, who died on December 10, 1954, executed his last will and testament on July 11, 1949. He later amended a portion of the will's residuary clause by codicil dated May 14, 1952. Prior to its amendment the residuary clause provided in pertinent part:
FIFTEENTH : All the rest, residue and remainder of my estate, of whatsoever kind or character, whether real, personal or mixed . . . I give, devise and bequeath unto my Trustees . . .; IN TRUST, NEVERTHELESS, for the several uses and ...