Schattenberg's Estate

Opinion by

Mr. Justice Walling,

The question here is whether a legacy given in a codicil is subject to the trust created by the will. In 1906, Frederick Schattenberg made his last will, which embraced, inter alia, a devise of certain real estate to his daughter, Eda [Edith] Nonemacher, and in clause eighth provided, “The rest and residue of my estate shall go to my trustee herein appointed and by it invested (not however so as to interfere with Article Seventh) and the net income to be paid to my daughter Eda Nonemacher in her own hand — nor shall it be liable for any process for the collection of debt or paid to her husband or any other person on order — execution attachment or sequestration. After her decease the fund is to be divided among her three children share and share alike when they severally become 21 years of age — the survivor or survivors to take the whole fund.” The .will closed with the appointment of executors and a trustee. In 1911 he made a codicil wherein he expressly republished so much of the will as was not inconsistent therewith; and clause fourth of the codicil provides, inter alia, “All my real estate I give devise and bequeath to my executor hereinafter mentioned to be by him disposed of at such time as he may deem fit, not prior to decease of Margaret Harnack [a life tenant of certain real estate], and for such purpose I give him full power to make deed or deeds therefor on such terms as may to Mm seem fit and to take, receipt for and receive the monies arising therefrom. Provided that the net rents up to such time as it may be disposed- of from my property mentioned in clause First of my aforesaid will I give, devise and bequeath to Edith Nonemacher, my daughter. The balance of money arising therefrom in trust however for the following uses and purposes namely: To my daughter Edith Nonemacher, the sum of six thousand dollars. The balance I direct him to distribute to my four grandchildren, namely, Mertel Celia, Howard Nonemacher, Walter Nonemacher and Freda Nonemacher to them, their heirs and assigns share and share alike. Said money however given to my grandchildren is held in trust and is to be paid over to them when Freda, the youngest granddaughter arrives at the age of twenty-one years.” He also therein appoints a new trustee and executor in place of those named in the will. Testator died in 1912, but Mrs. Nonemacher and her children are still living and of full age. The executor sold certain real estate and charged himself therewith in his first partial account; in the adjudication of which the auditing judge awarded the net proceeds thereof, to wit, $5,035.29, to the trustee for use of Mrs. Nonemacher, under the trust created by the will, to apply on the $6,000 legacy given her by the codicil. From the decree of the orphans’ court confirming the adjudication, she brought this appeal.

We cannot sustain her contention that the $6,000 legacy was an absolute gift to her and free from the trust provided in the will. A will and codicil are construed together and the latter revokes the former only so far as repugnant thereto. “The rule is well established, that a codicil shall not disturb the dispositions of the original will further than is absolutely necessary for the purpose of giving it effect”: Hawkins’s Orphans’ Court Principles and Practice, p. 63. This accords with Sigel’s Est. (No. 1), 213 Pa. 14; Jones v. Strong, 142 Pa. 496; Reichard’s App., 116 Pa. 232; Morrow’s Est., 204 Pa. 484; Frechie’s Est., 62 Pa. Superior Ct. 48, and other cases.

As appellant was a married woman, the spendthrift trust provided for her in the will was lawful, and no language in the codicil is inconsistent therewith. In fact by the latter the $6,000 legacy is given in trust for her use, and it was unnecessary to restate the conditions thereof as found in the will. In Phillips’s Est., 30 W. N. C. 241, 242, the late Judge Penrose states that, “The rule is also well settled (Theobald on Wills, 117-8; Hawkins on Wills, 306-7; Williams on Executors, 1405), that ‘added legacies are prima facie subject to the same incidents or conditions as the original legacy.’ Hence if a legacy is given in trust for separate use by will, an additional sum given by codicil will be held to be for separate use, though not so expressed.” See also King’s Est., 210 Pa. 435. The reason the codicil sets out the terms of the trust for the grandchildren and not for appellant doubtless was that the trust as to her was defined in the will. While the codicil changes the nature and amount of her legacy, the trust upon which it was given remains as defined in the will.

The decree is affirmed at the costs of appellant.