Estate of Stewart

473 A.2d 572, 325 Pa. Super. 545
CourtSupreme Court of Pennsylvania
DecidedJuly 11, 1984
Docket2044
StatusPublished
Cited by10 cases

This text of 473 A.2d 572 (Estate of Stewart) 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 Stewart, 473 A.2d 572, 325 Pa. Super. 545 (Pa. 1984).

Opinions

[547]*547SPAETH, Judge:

This appeal is from an order dismissing exceptions to an order denying probate of a will. Appellant argues that under the will she is entitled to appoint the entire estate to herself, subject to the payment of the pecuniary legacies. We agree and therefore reverse.

Arthur Stewart died on March 8, 1979, leaving a three-page handwritten will, as follows:

Nov. 30-78
My last will and testmont
I Arthur Stewart Box 99 Maple Shade Rd. Christiana Pa RD 2
Being in sound mind and memory hereby publish and declair this is my last will and testmont I direct that all my bills and furenal expenses be paid first.
I have two insurance policys with General Steel Ind. in saint Lewis Mo. my holdings are a 31 acre farm on Maple shade Rd. Colarine Township lane Co. Two savings account one in Quarryville Farmers bank one in South Eastern in Atglen also a checking acc in each. I direct that all my bills be paid and satified by my good friend Eva S Hibbert who is my exsector I also direct that Eva S Hibbert does not have to be bonded or enter security to form a formal account Mrs Hibbert is to appoint who ever she wants to help her settle up the estate.
My friend Eva Hibbert who has been so helpfull to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service, She is to take and keep what ever she wants from the house or farm and then sell the rest at her convience.
Mrs. Hibbert has taking care of my business for four years and knows all about my estate so she can handle my estate as she sees fit
/s/ Arthur Stewart
[548]*548To my friends I leave a small rememberance after the estate is settled up.
George Cornog 2000.00
Alice Day 2000.00
Asbury & Mary Passwaters 2000.00
Alberta McNiss 3000.00
Alice Cooper 1000.00
Shirley O’Neal 1000.00
Shannon O’Neal 1000.00
Brandon O’Neal 1000.00
Jim & Emma Martin for coming to visit mother often 2000.00
Joseph Martin 1000.00
Evert Keene 1000.00
David Engle 1000.00
Earl Ewing & Tish 2000.00
Walter Todd, Jr. 2000.00
I have set my hand this day of Nov. 80 1978
/s/ Arthur Stewart

Appellant sought to exercise a general power of appointment under the will, and she requested that the entire estate be awarded to her, subject to payment of the pecuniary legacies. On April 29, 1980, two nephews of the testator filed objections, and after audit the trial court entered an adjudication in which it concluded that the will did not give appellant a power of appointment; that appellant was entitled to take only whatever personal, tangible property she wanted from the house or farm; and that there was an intestacy as to the residue of the estate.

As noted, the will provides that appellant should “handle my estate as she sees fit.” Appellant argues that this provision gives her a general, presently exercisable power of appointment over the residue of his estate.

A power is general if the donor of the power does not restrict the class of persons in whose favor it may be exercised; a power is presently exercisable if the donee of the power may exercise it by inter vivos, as well as by testamentary conveyance. See generally V American Law [549]*549of Property § 23.4 at 467 (A. James Casner ed. 1952) (“The donee of a general power of appointment, where the power is presently exercisable, is effectively the beneficial owner of the property subject to the power. Although technically he has no title to the property until he exercises the power, he can obtain the title, and therefore enjoy all the benefits of ownership, simply by going through a mere formality.”).

The trial court concluded that the word “ ‘handle’ means to manage or operate,” and is a “word of administration [rather than] a word of disposition.” Adjudication at 6. We find this conclusion unpersuasive, for several reasons.

To begin, the trial court ascribed to the testator a skill with words that he didn’t have — as the face of the will demonstrates. Words are misspelled {e.g., “furenal”; “declair”; “exsector”; “convience”); sentences are incomplete, or ungrammatical, or both {e.g., “my friend Eva Hibbert who has been so helpfull to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service.”); and administrative and dispositive provisions are mixed up, first one and then the other, in no logical order.

The trial court suggested that to create a general power of appointment in appellant, the testator should have used the word “dispose” instead of “handle.” But “dispose” is a fancy word that wouldn’t have occurred to the testator. Furthermore, “handle” is not only a word of administration. The expression, “You handle it!” is common, and is understood as conferring a very general authority, or power.

Moreover, the trial court’s narrow construction of “handle” is inconsistent with two features of the will.

Perhaps the more striking of these features is that the testator signed the will in the middle — immediately after his statement that appellant “knows all about my estate and she can handle my estate as she sees fit.” Then the testator wrote “next page,” and on the next page he listed the pecuniary legacies and signed his name again. This is [550]*550consistent only with a broad construction of “handle.” Apparently the testator believed that when he had given appellant the power to “handle my estate as she sees fit,” he had completed his will. For otherwise he wouldn’t have signed his name. The way to construe this will is to think of it as a will giving appellant the power to handle the entire estate as she sees fit, with a codicil giving pecuniary legacies.

The second, almost as striking, feature of the will is the distinction the testator made between appellant and the legatees. While briefly characterizing the legatees as “my friends” to each of whom he was “leavpng] a small rememberance,” the testator referred to appellant as “my very good friend,” explaining that appellant “has been so help-full to me and Mother she has taking up so much of her time taking care of Mother and me and would not take any money for her service,” and “has taking care of my business for four years,” and further manifesting his confidence in appellant by providing that she “does not have to be bonded or enter security to form a formal account” and may “appoint whoever she wants to help her settle up the estate.” The testator’s intention to be more generous to appellant than to any of the legatees is unmistakable.

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Estate of Stewart
473 A.2d 572 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
473 A.2d 572, 325 Pa. Super. 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-stewart-pa-1984.