Whitmore's Estate

Philadelphia County Orphans' Court

Whitmore's Estate

5 Pa. D. & C. 301, 1924 Pa. Dist. & Cnty. Dec. LEXIS 107

CourtPennsylvania Orphans' Court, Philadelphia County

DecidedNovember 3, 1924

DocketNo. 659

StatusPublished

This text of 5 Pa. D. & C. 301 (Whitmore's Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitmore's Estate, 5 Pa. D. & C. 301, 1924 Pa. Dist. & Cnty. Dec. LEXIS 107 (Pa. Super. Ct. 1924).

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Opinion

Lamorelle, P. J.,

A bequest of the interest or product of a fund, without limitation as to the extent of its duration, is a bequest of the fund itself: Thompson’s Estate, 234 Pa. 82. If, however, the gift of income is limited, then there is no gift of principal: Weiser v. Zeigler, 192 Pa. 394. In the instant case, exceptant, while admitting the rule, contends that the gift over is void, in that it comes within the Rule in Shelley’s Case. But does it?

The will directs a sale of a house in event that the surviving husband and a sister no longer desired to dwell therein; a division of the proceeds, of which two shares are bequeathed outright, and the remaining three are to be put out at interest, which interest is to be divided among two sisters and a brother. In case the brother dies without children, his share passes to three sisters or their heirs; if the two .sisters die, their shares to go to their heirs. The property has been sold and the auditing judge, despite the fact that the three sisters have assigned their shares to the brother who is childless, rules that three-fifths of the fund is to be held in trust. In this ruling we find no error. At present, and in the circumstances, the brother has but an equitable life interest, and the sisters have no more. It is well settled that the Rule in Shelley’s Case has no application unless the estates of the life-tenants and the remaindermen are of the same quality. See Little v. Wilcox, 119 Pa. 439; Hemphill’s Estate, 180 Pa. 95; Wolfinger v. Fell, 195 Pa. 12; Eshbach's Estate, 197 Pa. 153; West’s Estate, 214 Pa. 35, and Xander v. Easton Trust Co., 217 Pa. 485. Here, as there is no coalescence, we deem it unnecessary to add to what has already been said by the auditing judge.

All exceptions are accordingly dismissed and the adjudication is confirmed absolutely.

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Lamorelle, P. J.,

A bequest of the interest or product of a fund, without limitation as to the extent of its duration, is a bequest of the fund itself: Thompson’s Estate, 234 Pa. 82. If, however, the gift of income is limited, then there is no gift of principal: Weiser v. Zeigler, 192 Pa. 394. In the instant case, exceptant, while admitting the rule, contends that the gift over is void, in that it comes within the Rule in Shelley’s Case. But does it?

The will directs a sale of a house in event that the surviving husband and a sister no longer desired to dwell therein; a division of the proceeds, of which two shares are bequeathed outright, and the remaining three are to be put out at interest, which interest is to be divided among two sisters and a brother. In case the brother dies without children, his share passes to three sisters or their heirs; if the two .sisters die, their shares to go to their heirs. The property has been sold and the auditing judge, despite the fact that the three sisters have assigned their shares to the brother who is childless, rules that three-fifths of the fund is to be held in trust. In this ruling we find no error. At present, and in the circumstances, the brother has but an equitable life interest, and the sisters have no more. It is well settled that the Rule in Shelley’s Case has no application unless the estates of the life-tenants and the remaindermen are of the same quality. See Little v. Wilcox, 119 Pa. 439; Hemphill’s Estate, 180 Pa. 95; Wolfinger v. Fell, 195 Pa. 12; Eshbach's Estate, 197 Pa. 153; West’s Estate, 214 Pa. 35, and Xander v. Easton Trust Co., 217 Pa. 485. Here, as there is no coalescence, we deem it unnecessary to add to what has already been said by the auditing judge.

All exceptions are accordingly dismissed and the adjudication is confirmed absolutely.

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Bluebook (online)

5 Pa. D. & C. 301, 1924 Pa. Dist. & Cnty. Dec. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmores-estate-paorphctphilad-1924.

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