Wraught's Estate , 1942 Pa. Dist. & Cnty. Dec. LEXIS 504 ( 1942 )

Klein, J.,

Testator, after making an absolute unconditional gift of his estate to his wife, provided in a subsequent paragraph that if she should predecease him or if they should die under such circumstances as to make it impossible or impracticable to determine who died first, or should his wife die before the settlement of his estate, then in such event his estate should pass to another person not related to him.

The provisions concerning the possible death of the testator and his wife in a common accident may be dismissed from our consideration, because the wife, in fact, survived her husband for a period of six months. The principal question raised by these exceptions involves the construction of the phrase “die before the settlement of my estate.”

The learned auditing judge in a well-reasoned and carefully-considered adjudication ruled that this case is controlled by Wilkes’ Estate, 25 D. & C. 228 (1935),' unanimously decided by this court in a per curiam opinion, and held that the residuary estate vested in the widow and that the divesting contingency was inoperative. A majority of the court agree with this conclusion.

It is settled beyond question “that where in a will an absolute estate is given it will not be cut down by subsequent language unless the intent so to do is clear”: Garrett’s Estate, 321 Pa. 74, 77 (1936). The courts have consistently held that such expressions as “survive long enough to come into actual possession” and “die before distribution of my estate” are too vague and indefinite to divest an otherwise absolute estate: Wengerd’s Estate, 143 Pa. 615, 621 (1891) ; Martin’s Estate, 57 Montg. 352 (1941) ; Bittner’s Estate, 18 Lehigh 191 (1939) ; Dilworth’s Estate, 58 Pitts. 47 (1910); Blecher’s Estate, 22 Lanc. 17 (1901) ; Wirt’s Estate, 12 York 23 (1898) ; Muller’s Estate, 19 W. N. C. 320 (1887). In our opinion the meaning of “settlement of my estate” is equally doubtful and equivocal and it cannot be construed to divest the widow of the unconditional gift given in the preceding paragraph of the will.

Counsel for exceptant contends that testator contemplated an audit of the executrix’s account by the orphans’ court and that her death prior to formal action by the court divested her of the gift in favor of the alternate legatee. We cannot agree with this contention.

Approximately “40% of the estates in Philadelphia are wound up without formal accounts”: I Remick’s Pennsylvania Orphans’ Court Practice (3rd ed.), p. 402, n. 6, cited with approval in Ray’s Estate, 345 Pa. 210, 213 (1942). Surely, these estates must be regarded as settled when all creditors are paid and distribution made to the parties entitled thereto, even though they are never brought before the orphans’ court for audit.

The Supreme Court points out, further, in Ray’s Estate, supra, that even where accounts have been filed the practice in settling estates of decedents differs in the various counties of the State. If this court were to adopt the strict definition of “settlement” urged upon it by exceptant, the construction of the language under consideration would vary, depending upon the probate practice existing in each county.

Let us suppose that the executrix had filed an account. At what stage of the proceedings would “settlement of the estate” have taken place? If an adjudication had been entered by the court confirming the account and awarding the balance for distribution to her, but distribution had not yet actually been made, would the estate have been considered settled? What would have been the result if distribution had been made but satisfactions of awards had not been filed and the executrix had not been formally discharged? Even more forcibly, we might inquire: What would have been the effect of prolonged but unsuccessful litigation instituted by the alternate legatee or by someone in her behalf? Could a disappointed legatee or a scheming claimant divest the widow of her interest in the estate by unduly delaying its settlement? We think not. So many contingencies might thus delay the administration and distribution of the estate that we cannot impute to this testator in his use of the word “settlement” an intention to impose upon his wife, as a condition to receiving his bounty, a strict compliance with all the formalities of our practice. See Martin’s Estate, supra.

But even if, for the sake of argument, we concede that the gift to the wife was contingent, it is clear that she had progressed to a point in her administration of the estate where liability for taxes had been acquitted and the claims of all creditors had been satisfied. Therefore, no one but she had any further interest in the estate either as surety, creditor, or legatee, and she may be regarded as having settled the estate within testator’s meaning. The actual transfer of the assets from the widow as executrix to herself individually, whether by authority of the orphans’ court or not, is purely ministerial and not, in our opinion, an essential prerequisite of “settlement”.

We agree with the auditing judge that McClure’s Estate, 221 Pa. 556 (1908), relied upon by exceptant, is not applicable to the present case. For an interesting discussion, distinguishing McClure’s Estate from a situation similar to the one before us, see Bittner’s Estate, supra, p. 193, opinion by Gearhart, P. J.

We are fortified in our conclusion in this case by the well-established rule of law that an interest will not be considered to be contingent unless it is impossible to construe it as vested: Youngblood’s Estate, 117 Pa. Superior Ct. 550, 554 (1935). And this preference for vested estates applies with much greater force where, as in this case, the testator is making provision for his wife, who is the natural object of his bounty, and the alternate legatee is a stranger.

- Having reached the conclusion that the interest of the widow was vested, it is not necessary to consider the other exceptions filed by the alternate legatee, as under the view we have taken she has no further interest in this estate.

The exceptions are therefore all dismissed and the adjudication confirmed absolutely.