Heppe Estate

269 A.2d 687, 440 Pa. 328, 65 A.L.R. 3d 1319, 1970 Pa. LEXIS 582
CourtSupreme Court of Pennsylvania
DecidedOctober 9, 1970
DocketAppeal, 287
StatusPublished
Cited by9 cases

This text of 269 A.2d 687 (Heppe Estate) 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
Heppe Estate, 269 A.2d 687, 440 Pa. 328, 65 A.L.R. 3d 1319, 1970 Pa. LEXIS 582 (Pa. 1970).

Opinions

Opinion by

Mr. Justice Roberts,

Margaret Deal Heppe died on February 17, 1968, leaving a will dated June 19, 1964, a codicil dated October 11, 1965, and a second codicil dated November 30, 1967. All were duly probated by the Register of Wills of Montgomery County. The decedent’s will con[330]*330tained various specific legacies to each, of her three sons, and left the residue of the estate to her three sons generally. The first codicil contained one pecuniary legacy to appellant, expressed as follows: “Before the disposition of the residue of my estate I give and bequeath the sum of Five Thousand Dollars ($5,000.00) to my faithful employee, Leonard Jerry Dunnigan, provided he survives me and is in my employ at the time of my death."

The second codicil, drawn more than two years later by a different scrivener, contained a number of gifts to the decedent’s grandchildren and daughters-in-law, an administrative provision, and the following bequest: “Fourth: I give and bequeath to Leonard J. Dunnigan for long and faithful service, if he should survive me the sum of Five Thousand Dollars ($5,000.00).’’

The named legatee, Leonard J. Dunnigan, survived the testatrix and was in her employ as a domestic servant and cook at the time of testatrix’s death. The executor of the estate paid Dunnigan only $5,000. Dunnigan then presented a claim for the additional $5,000 legacy at the audit before the Orphans’ Court Division of the Court of Common Pleas of Montgomery County. That court heard evidence on Dunnigan’s claim, including testimony from the scrivener of the second codicil—to which appellant Dunnigan failed to object— and entered an adjudication on October 22, 1969, that the second codicil was not cumulative but a mere repetition of the language in the first codicil.

Appellant took six exceptions to the adjudication, of which, two concerning the question whether both requests required that the legatee be an employee of the decedent at her death were sustained pro forma. In his opinion sur exceptions on December 9, 1969, the auditing judge noted that only the first bequest to appellant Dunnigan so required. The auditing judge, [331]*331however, reasoned that this error should not affect his earlier adjudication, for the strong similarities between the two bequests indicated that they were repetitious. Appellant then took this appeal on the issues of whether the intrinsic evidence in both codicils is sufficient to overcome a presumption that such legacies are cumulative, and whether the auditing judge erred in hearing testimony from the second scrivener concerning extrinsic facts and testatrix’s intent without allowing the appellant to testify.

The general rule on this subject is stated in Appeal of S. M. Manifold, 126 Pa. 508, 19 Atl. 42 (1889), where this Court, citing 2 Roper on Legacies 999, said: “ ‘When two legacies are bequeathed to the same person by different testamentary instruments, viz.: one by the will and the other by the codicil; or when they are given by different codicils, and the testator has given both of the legacies simplieiter, the court in such cases, in the absence of intrinsic evidence, considers that as the testator has given twice, he must prima facie be intended to mean two gifts; and it seems to be immaterial, whether the legacies are of equal or unequal amounts, or whether they are of the same or different natures.’ ” Id. at 510. See also Sponsor's Appeal, 107 Pa. 95 (1884).

Appellee argues that because the legacies were qualified and not simplieiter, the presumption in favor of cumulative legacies has no application. Such an argument is a misapplication of the general rule quoted above.

Probably the most thorough and scholarly treatment of this particular problem by a Pennsylvania court was in Swain’s Estate, 29 Dist. 361 (Orphans’ Ct., Phila. County 1920). There, Judge Gest, summarized the then present state of the law as follows: “It may, however, be considered as settled (1) that where legacies [332]*332of equal amount are given by the same instrument, they are presumably repetitious; and (2) where the same thing is given specifically by two different instruments, as, for example, a ring, there can be no duplication, because the same thing cannot be given twice. Where, hoAvever, (3) pecuniary legacies of the same or similar sum are given by both instruments to the same persons, the presumption is that they are intended to be cumulative, and will be so awarded unless there appears evidence in the will to show the contrary.” Id. at 364.

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Heppe Estate
269 A.2d 687 (Supreme Court of Pennsylvania, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
269 A.2d 687, 440 Pa. 328, 65 A.L.R. 3d 1319, 1970 Pa. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heppe-estate-pa-1970.