DocketNumber: Appeal, 193
Citation Numbers: 41 A.2d 52, 156 Pa. Super. 405, 1945 Pa. Super. LEXIS 283
Judges: Hirt, Keller, Baldrige, Rhodes, Hert, Reno, James
Filed Date: 11/21/1944
Status: Precedential
Modified Date: 10/19/2024
Argued November 21, 1944. Charles W. Dulles died testate April 5, 1939 without issue. His widow, Thelma, elected to take against the will. On the audit of the executor's account one-half of the estate was awarded to her. The fund of $3,827.76 remaining, after the payment of a specific legacy, was awarded to testator's named trustees. The will imposed a trust on the residuary estate and directed the payment of income therefrom to testator's wife for life, coupled with the following provision, which gives rise to the question on this appeal: "Fifth . . . . . . In the event of the death of my said wife prior to January 1, 1944, then in such event to pay the income to her two children, [by a former marriage] Nancy Yerxa and Thomas Edward Yerxa, 3rd, equally until January 1, 1944." The will further provided: "Sixth: Upon the death of my wife, or on January 1, 1944, should my wife die prior to such date, I direct the distribution of the principal of my estate" to two brothers, to a sister and to a former wife of a brother, in stated proportions. The will contemplated quarterly distributions of income until January 1, 1944 and a termination of the trust by *Page 407 distribution of the entire principal of the estate on that date. The trustees did not distribute the income earned on the residuary estate but retained it and allowed it to cumulate. The account of the trustees before the court for audit and distribution shows $723.60 in the hands of the trustees as the total income earned on the residuary estate prior to January 1, 1944. At the audit this income was claimed by Nancy and Thomas Yerxa in equal shares under the fifth provision of the will, supra, but was awarded with distribution of the principal of the estate to the remaindermen named in the sixth section. The question is whether the election of the widow to take against the will accelerates the rights of her children to the entire income on the residuary estate as though she were dead. Actually the widow was still living on January 1, 1944.
The decree will be reversed. In Ferguson's Estate,
Under the holding of the above cases a remainder is accelerated by the election of the widow "unless the will plainly indicates a contrary intent": Schmick Estate,
The order is reversed at the costs of the estate; distribution of the income earned on the estate to January 1, 1944 is awarded to Nancy and Thomas Edward Yerxa in equal shares. *Page 409