Wybrecht's Estate

Philadelphia County Orphans' Court

Wybrecht's Estate

6 Pa. D. & C. 167, 1925 Pa. Dist. & Cnty. Dec. LEXIS 314

CourtPennsylvania Orphans' Court, Philadelphia County

DecidedMarch 27, 1925

DocketNo. 1613

StatusPublished

This text of 6 Pa. D. & C. 167 (Wybrecht'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

Wybrecht's Estate, 6 Pa. D. & C. 167, 1925 Pa. Dist. & Cnty. Dec. LEXIS 314 (Pa. Super. Ct. 1925).

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Opinion

Van Dusen, J.,

Testator devised to Adolph P. Shick and wife premises No. 2510 North Lee Street, and further provided: “Said property to be clear of all incumbrances and I hereby order and direct that my estate shall pay off any and all liens or incumbrances on said property at the time of my decease.” At the time the will was made the testator had already conveyed the premises to Adolph P. Shick and wife, taking in part-payment their bond and mortgage of $1500, since reduced to $1300, which he held at the time of his death.

Adolph P. Shick and wife were not represented at the audit, and the Auditing Judge directed that they be notified of the question which arose. Exceptions were filed on their behalf, which were somewhat informal, but we understand the claim to be made in effect that they should be awarded the mortgage on their property as a sort of legacy. We think the Auditing Judge was correct in refusing to do so.

The specific devise is adeemed, or, more exactly, fails of effect because at the date of the will there was nothing on which it could operate. The direction to “pay off” the encumbrances must fall with it. The whole plan of the testator [168]*168and the language which he used, are predicated on the property passing under the will. However much we may suppose that the testator would have directed the satisfaction of the mortgage if the correct- circumstances had been present in his mind (or that of the scrivener), we can only go by what he said.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.

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Van Dusen, J.,

Testator devised to Adolph P. Shick and wife premises No. 2510 North Lee Street, and further provided: “Said property to be clear of all incumbrances and I hereby order and direct that my estate shall pay off any and all liens or incumbrances on said property at the time of my decease.” At the time the will was made the testator had already conveyed the premises to Adolph P. Shick and wife, taking in part-payment their bond and mortgage of $1500, since reduced to $1300, which he held at the time of his death.

Adolph P. Shick and wife were not represented at the audit, and the Auditing Judge directed that they be notified of the question which arose. Exceptions were filed on their behalf, which were somewhat informal, but we understand the claim to be made in effect that they should be awarded the mortgage on their property as a sort of legacy. We think the Auditing Judge was correct in refusing to do so.

The specific devise is adeemed, or, more exactly, fails of effect because at the date of the will there was nothing on which it could operate. The direction to “pay off” the encumbrances must fall with it. The whole plan of the testator [168]*168and the language which he used, are predicated on the property passing under the will. However much we may suppose that the testator would have directed the satisfaction of the mortgage if the correct- circumstances had been present in his mind (or that of the scrivener), we can only go by what he said.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.

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Bluebook (online)

6 Pa. D. & C. 167, 1925 Pa. Dist. & Cnty. Dec. LEXIS 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wybrechts-estate-paorphctphilad-1925.