Folchman Estate

65 Pa. D. & C.2d 88, 1974 Pa. Dist. & Cnty. Dec. LEXIS 530
CourtPennsylvania Court of Common Pleas, Chester County
DecidedMarch 27, 1974
Docketno. 319 of 1972
StatusPublished

This text of 65 Pa. D. & C.2d 88 (Folchman Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folchman Estate, 65 Pa. D. & C.2d 88, 1974 Pa. Dist. & Cnty. Dec. LEXIS 530 (Pa. Super. Ct. 1974).

Opinion

KURTZ, JR., P. J.,

This decedent, who died April 6, 1972, left a will dated July 15, 1959, which provided, inter alia, as follows:

“SECOND: I give and devise unto my son, Norman L. Folchman, both of my farm properties situate in East Bradford Township, Chester County, Pennsylvania, for and during the term of his natural life, free and clear of all mortgages or other indebtedness thereon, with power to sell and convey the same, or any part thereof, or borrow money thereon, and to use any money derived therefrom from time to time, as he needs the same, for his proper maintenance and support, the operation of the farms, or to purchase other real estate, without accounting to anyone.

“THIRD: Upon the death of my son, Norman L. Folchman, whatever remains of the said properties [89]*89or the proceeds therefrom, I give, devise and bequeath unto his children.” (This paragraph also appointed a guardian or trustee for the estates of any such children until they arrived at age twenty-one).

“FIFTH: I direct that all inheritance and estate taxes be paid from the residue of my estate.

“SIXTH: All the rest, residue and remainder of my estate I give and bequeath unto my daughter, Dorothy J. Plunkett.”

Norman Folchman and his sister, Dorothy Plunkett, both survived decedent. Norman has four children, three of whom are minors.

Norman and Dorothy have entered into a family settlement agreement in which it is stated that as a result of the appreciation of real estate values between the date of the will and the date of testator’s death, an inequality of distribution between the son and daughter would result if the provisions of the will are carried out, which would be contrary to decedent’s intention. To overcome that situation, it was agreed: (1) that the stock and coins which were shown by the executors’ account to comprise a part of the balance for distribution should not be sold but that they should be distributed to Dorothy; (2) that one of the two tracts of real estate which was an asset of the estate should be sold to raise funds to pay taxes and the expenses of distribution; and (3) that the remaining farm and all cash should be distributed to Norman. This agreement was based upon the assumption that Norman was entitled to receive a fee simple interest in both parcels of real estate under the terms of the will. In reaching that conclusion, the parties relied upon Lininger’s Appeal, 110 Pa. 398 (1885), in which it was held that where a testator devised his real estate to his wife for life “ ‘to be held and enjoyed by her as her own’ ” and directed that she should take possession of all of his [90]*90personal estate to “ “hold or convert the same into cash, as she may see proper, and if the proceeds of the real estate be not sufficient to support her she is at liberty to take as much of the personal hind or money as she may see proper for that or any other purpose’ ” and provided further that upon the wife’s death and the payment of her debts and funeral expenses, his estate should be settled; the widow was the judge as to how and when she should exercise the power to consume personalty thus conferred so that she could make a gift of an asset which she held as life tenant, thereby relieving testator’s executor from accounting for that asset.

The executors of this testator’s will have filed their first and final account which reflects the sale of one parcel of real estate pursuant to the terms of the settlement agreement and have presented a petition for adjudication in which they ask that distribution be decreed in accordance with the terms of the agreement. Inasmuch as the interests, if any, of Norman Folchman’s children are prejudiced by the terms of that agreement, we appointed a guardian ad litem to represent those interests and those of any possible unborn children of the said Norman. The guardian has filed a report in which he challenges the conclusion upon which the family settlement agreement is based, asserting therein that Norman obtained only a legal life estate with power to consume by the terms of his father’s will, and that the rights of his children as remaindermen following that fife estate cannot be jeopardized by the distribution proposed. It is to the resolution of that controversy that we must here direct our attention.

Two principles of will construction have application. First, testator’s intent must be ascertained by a consideration of the entire will. Second, a will must [91]*91be construed, if possible, so as to give effect to every word employed by testator, and a construction which renders any of the words nugatory and futile must be rejected: Vandergrift Estate, 406 Pa. 14, 26 (1962).

This testator clearly provided that Norman’s inheritance consisted of a life estate only, and insured the interests of those who would benefit after the life estate had run its course by making provision for the distribution of that which remained or the “proceeds therefrom.” In addition, he reckoned with the possibility that the life estate might be terminated before some of the remaindermen had attained the age of 21 years by appointing a guardian for the estates of those who might be subject to that disability. A reading of all of the provisions of the will which have to do with the disposition of the real estate leads to but one conclusion: that Norman was given a life estate which was enlarged by a limited power of disposition for the accomplishment of specified ends, and that upon his death those assets of the estate which remained or the proceeds thereof were to pass to his children. See Linn Estate, 435 Pa. 598 (1969); Gramm Estate, 420 Pa. 510 (1966); Brennan’s Estate, 324 Pa. 410 (1936); Byrne’s Estate, 320 Pa. 513 (1935); Kennedy v. Pittsburg & Lake Erie Railroad Company, 216 Pa. 575 (1907).

In reaching this judgment, we have not overlooked the provision in the second paragraph of testator’s will which exempts the life tenant from accounting to any one for the management of the assets of the life estate. The will under consideration in Rumsey’s Estate, 287 Pa. 448 (1926), contained a like provision. In holding that the personal representatives of the widow-life tenant’s estate were required to deliver assets which their decedent had received under the provisions of her husband’s will which remained after her death to the personal representative of the husband’s estate, [92]*92the widow’s power to consume being limited for her necessities or convenience, the court pointed out that during her lifetime her decision as to what was necessary or convenient was without appeal, except that it must be honestly reached in accordance with testator’s intention and could not be merely colorable to defeat his will. See also Tyson’s Estate, 191 Pa. 218 (1899). Thus, this life tenant, to whom the real estate was devised subject to similar restrictions, is limited to disposition thereof on fulfillment of his testator’s expressed intention but the powers thus conferred cannot be utilized to circumvent that intention.

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Related

Gramm Estate
218 A.2d 342 (Supreme Court of Pennsylvania, 1966)
Linn Estate
258 A.2d 645 (Supreme Court of Pennsylvania, 1969)
Vandergrift Estate
177 A.2d 432 (Supreme Court of Pennsylvania, 1962)
Rumsey's Estate
135 A. 119 (Supreme Court of Pennsylvania, 1926)
Powell's Estate
17 A.2d 391 (Supreme Court of Pennsylvania, 1940)
Brennan's Estate
188 A. 160 (Supreme Court of Pennsylvania, 1936)
Byrne's Estate
181 A. 500 (Supreme Court of Pennsylvania, 1935)
Lininger's Appeal
1 A. 722 (Supreme Court of Pennsylvania, 1885)
Estate of Tyson
43 A. 131 (Supreme Court of Pennsylvania, 1899)
Kennedy v. Pittsburg & Lake Erie Railroad
65 A. 1102 (Supreme Court of Pennsylvania, 1907)
French v. Breidelman
2 Grant 319 (Supreme Court of Pennsylvania, 1855)

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Bluebook (online)
65 Pa. D. & C.2d 88, 1974 Pa. Dist. & Cnty. Dec. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folchman-estate-pactcomplcheste-1974.