Elwart's Estate

Opinion by Head, J., The record presented by this appeal discloses no reversible error. The opinions filed by the learned auditing judge and court in banc fairly meet and dispose of every material question involved. Due recognition is given to what Chief Justice Gibson in Zeigler v. Eckert, 6 Pa. 13, calls “the legal presumption of an intention not to discharge a debt which arises from a naked legacy to the debtor.” It is upon this presumption the appellant must rely. But it is clearly pointed out in Sharp v. Wightman, 205 Pa. 285, that where a testator makes a gift of the net income of a fund or property, and especially where it is provided, as in this case, that “in no manner or any circumstances is the .... income so held in trust to be liable for the present, past or future debts” of the legatee, the presumption just referred to, if not entirely destroyed, is so far weakened that recourse may be had to extrinsic evidence to enable the court to determine the real intent of the testator in the premises. The record shows that an opportunity to furnish such proof was given to the present appellant but none was offered. The learned auditing judge therefore, in the absence of other evidence, rightfully took cognizance of the facts disclosed by the adjudication. From these it appeared that the estate of the testatrix was small; that by reason of financial reverses or otherwise one of her sons needed the protection of a spendthrift trust for any bequest she might make in his favor, and that her will clearly disclosed an intention on her part to make some provision by way of income to aid him. From these facts the conclusion was accordingly deduced that in the present case the beneficent intention of the testatrix would be practically nullified were the legatee [329] to have charged even against his income the amount, debt and interest, of a note he had given to his mother long before her will was made. It is also pointed out that by reason of the fact just stated the present case is clearly distinguishable from Neel’s Estate, 207 Pa. 443. All of these questions, and they are the vital and controlling ones in this case, are clearly and more elaborately discussed in the opinion of the learned court in banc. We are of opinion that the conclusion there reached was correct, and we accordingly affirm the decree that was entered. Decree affirmed.