Estate of McAfee

344 A.2d 817, 463 Pa. 250, 1975 Pa. LEXIS 985
CourtSupreme Court of Pennsylvania
DecidedOctober 3, 1975
Docket114
StatusPublished
Cited by4 cases

This text of 344 A.2d 817 (Estate of McAfee) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of McAfee, 344 A.2d 817, 463 Pa. 250, 1975 Pa. LEXIS 985 (Pa. 1975).

Opinions

OPINION

JONES, Chief Justice.

Annie McAfee died at the age of eighty-two on March 28, 1972, leaving a holographic will dated November 28, 1964. Testatrix’s will provided as follows:

“This is my wish and desire all my personal and realstate [sic] property I leave to my children to dispose of as they see fit.
After Thomas my son has been libiraly [sic] payed [sic] for careing [sic] for me the remainder devided [sic] among the other children. In case any of them become deceased before me their children to claim his or her share.”

At the time the testatrix executed her will, five of her six children were living. The sixth child, George J. McAfee, had died on November 5, 1948, sixteen years before the execution of the will. George J. McAfee left surviving three children, appellants in this case, who were living at the time of testatrix’s death.

At the audit of the first and final account of testatrix’s estate, appellants alleged, inter alia,, that they had been improperly excluded as legatees under the will, the [253]*253entire estate being divided among the five surviving children of the testatrix. A hearing was held at which the auditing judge concluded that the testatrix did not intend to include appellants as beneficiaries of her estate. Exceptions followed and subsequently were dismissed. This appeal followed.

The question raised on appeal is a narrow one. May the grandchildren of the testatrix, children of a son who died prior to the execution of the testatrix’s will, take the share of their deceased father by representation per stirpes?

It is well settled that in interpreting a will, the controlling element is the intention of the testatrix. Hamilton’s Estate, 454 Pa. 495, 312 A.2d 373 (1973). In Houston Estate, 414 Pa. 579, 201 A.2d 592 (1964), we said:

“It is now hornbook law (1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, or the testator’s intent is for any reason uncertain.” (Citation omitted.) 414 Pa. at 586, 201 A.2d at 595.

In the instant case, both counsel for the estate and counsel for appellants contend that the will is unambiguous and that no reference need be made to technical rules of construction. We agree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Rush
626 A.2d 602 (Superior Court of Pennsylvania, 1993)
In Re Estate of Janney
446 A.2d 1265 (Supreme Court of Pennsylvania, 1982)
Estate of McAfee
344 A.2d 817 (Supreme Court of Pennsylvania, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
344 A.2d 817, 463 Pa. 250, 1975 Pa. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mcafee-pa-1975.