Davis' Estate

21 Pa. D. & C. 1, 1934 Pa. Dist. & Cnty. Dec. LEXIS 1

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: April 13, 1934
• Status: Published

Opinions

Sinkler, J.,

Crumrine, P. J. (O. C. of Washington County, Pa.), in McElree’s Estate, 12 D. & C. 677, comments upon .the “common remark that the decisions on the question as to when beneficiaries under a will are to take per capita and when per stirpes are in hopeless confusion.” He says that, while this applies to the law of this State, the confusion is more apparent than real and results from the slight difference in the facts of the particular cases.

In the present case, the auditing judge has made a careful analysis of the clause in the will to be construed and of the applicable cases. He construes the direction to pay over and divide the corpus in equal shares to and among the designated beneficiaries to intend distribution per capita, not per stirpes. Analogy to the provisions of the intestate laws, relied upon in some of the cases upon this subject, does not arise in the present case, because those who would take under the intestate laws are not included among those designated by the will and would take to their exclusion.

The concluding words in the clause of the will under consideration direct that the surviving issue of any deceased child of the two individuals named shall take their deceased ancestor’s share by representation. This indicates an intention that the living children shall take per capita, not per stirpes, as is argued in behalf of exceptants.

The interpretation by the auditing judge of the word “divide”, as indicating distribution per capita, is sustained by Gest et al. v. Way et al., 2 Wharton 445, Bender’s Appeal, 3 Grant 210, and Priester’s Estate, 23 Pa. Superior Ct. 386.

His interpretation of the word “among”, as indicating distribution among more than two, is sustained by Hogan’s Estate, 12 Dist. 47, in which Penrose, J., gave this meaning to the word. See also Ghriskey’s Estate, 248 Pa. 90, Ihrie’s Estate, 162 Pa. 369, and Green’s Estate, 140 Pa. 253, in which cases the word “between” was employed, and the conclusion was that this word indicated a division into two parts. By comparison, it was said that where more than two were intended the word “among” was the proper word.

The auditing judge has correctly determined the distribution to be made under the clause of. the will in question.

The exceptions are dismissed, and the adjudication is confirmed absolutely.