In re Estate of Ferguson

Opinion by Linn, J., This appeal requires us to determine what the testator Albert Ferguson meant by this codicil: “In lieu of all other bequests to any persons mentioned I give and devise my estate, real and personal, to my wife, Anna Ferguson, and my son, Frank Ferguson, share and share alike after the death of my wife and her funeral and other necessary expenses have been paid, I give and devise to son, Frank Ferguson, or his heirs, the remainder, if any her share remains.” Frank Ferguson was his son by Anna. She had been married before and also died testate, bequeathing the residue of her estate to her two children by her first marriage. One of those children, claiming under her will, now appeals from the order awarding to Frank Ferguson so much of the personalty in the hands of the executor of Anna Ferguson as she received by the codicil less sums not now controverted. No questions arise either about the amount or about distribution direct instead of through the estate of Albert Ferguson, the parties apparently desiring the matter disposed of on this record. Appellant contends that Anna Ferguson took one-half of her husband’s estate absolutely by the codicil. Ap602 pellee contends that his father’s intention was that if at his mother’s death after the payment of “her funeral and other necessary expenses” any part remained he should take it. The controlling rule was discussed in Tyson’s Est., 191 Pa. 218, where of a similar contention the court said, “.the court below held that by the will.the personalty passed to his widow absolutely on the ground that a bequest of personalty with power to consume, sell and dispose of carries an absolute and unrestricted title to it. That such is the general rule cannot be disputed. It is not however a rule of law, but a rule of construction in aid of reaching the intent of the testator, and where a different intent is clear, the rule cannot be applied to defeat it.” What, then, has Albert Ferguson expressed his intention to be? His will was dated August 2, 1909. In it he provided that his widow should have the household furniture, some live stock, and an income of $17 a month from his estate during widowhood; he directed that at her death her funeral expenses and debts should be paid out of his estate and bequeathed the balance of the income to their son Frank Ferguson, together with certain stock and farming equipment; he provided that on the death of his wife their son’s share should be increased for life and that on the death of the son, the son’s son should take the property charged with the payment of certain legacies; Anna Ferguson’s children by her first marriage were not beneficiaries. The codicil was made eight years afterwards. It cannot be denied that the will indicates testator’s intention to benefit his widow and their descendants and not his widow and her children by the former marriage. Any doubt that the codicil states the same intention is removed by the disposition over to their son Frank of “the remainder if any her share remains”: Tyson’s Est., supra; Roger’s Est., 245 Pa. 206, 209; Huber’s Est., 249 Pa. 90, 93; Sellers v. Myers, 56 Pa. Superior Ct. 207, 214; Davis’s Est., 72 Pa. Superior [603] Ct. 332. The award complained of executes the expressed intention of the testator. Though the matter does not seem to have been pressed at the argument, we find no abuse of discretion in refusing the motion to refer the matter back to the auditor for the cause specified. The order is affirmed, the costs of this appeal to be paid by appellant.