Connor's Estate ( 1922 )

Gumímey, J.,

Mary Connor having bequeathed the residue of her estate to her son, Charles J. Connor, and her daughter, Mary E. Dempsey, their heirs and assigns forever, to be divided equally between them share and share alike, and Charles J. Connor having died in his mother’s lifetime without issue, the auditing judge awarded the whole of the residuary estate to the surviving beneficiary, Mary E. Dempsey, in pursuance of section 15 (c) of the Wills Act of June 7, 1917, P. L. 403, which provides that if a bequest in the residuary clause of a will fails or is void, it shall pass to the other residuary legatees unless the will shows an intention to the contrary. We do not see how the auditing judge could have done otherwise in view of our decision in Mitchell’s Estate, No. 241, April Term, 1921, affirmed by the Superior Court on March 3, 1922, not yet reported; it should be remembered, however, that Charles J. Connor died without issue; his children, if he had left any, would have taken his share under section 15 (a) of the Wills Act of 1917.

The appeal in Mitchell’s Estate, supra, had not been disposed of by the Superior Court at the time of the audit and, therefore, the auditing judge directed that one-half of the residuary estate should be retained by the accountant pending the result of that appeal; as the reason for this order no longer exists, it is hereby vacated, the exceptions are dismissed, the entire residuary estate is awarded to Mary E. Dempsey in her own right, and the adjudication as hereby amended is confirmed absolutely.