McConomy's Estate , 170 Pa. 140 ( 1895 )

Opinion by

Mr. Justice Fell,

The intention of the testator at the time of the execution of his will was to make an equal division of the residue of his estate among his children. There is no indication of a change of purpose, but in order that his intention should not be defeated by what had occurred afterward he directed by a codicil that nine hundred dollars should be deducted .from the share of his son H. R. McConomy. The language of the codicil is not clear, but the testator’s intention seems to have been to charge his son’s share with an amount which he had paid on his account. He speaks of giving nine hundred dollars of his son’s share, but names no one to whom it is given; and he says it is to be deducted from his share, the balance to be in full for the otherwise equal share to have been given him. If this was a gift of a portion of the son’s share to the other children, the distribution directed is correct; if it was a deduction in the nature of a charge in order to preserve equality among them, it is not correct. The latter view is in harmony with the testator’s intention to treat his children alike. Without this direction there would have been inequality, as by the codicil the share of H. R. McConomy is given to his wife and children free from liability for his debts, and his indebtedness to the estate could not have been deducted from the share which went to them. The deduction was not for the exclusive benefit of the other children, but in order that their shares should not be reduced by reason of the indebtedness of H. R. McConomy to his father’s estate, and that under the change of beneficiaries provided by the codicil they should all be treated alike. The nine hundred dollars should have been treated as its payment would have been. It would then have been a part of the estate to be distributed among all the children. The plan of distribution adopted gave it to the remaining children, making each of their shares $1,080 greater than that of the wife and children of H. R. McConomy. If distributed as if the sum had been repaid the share of each of five children would be $2,091.51, and that of the wife and children of H. R. McConomy $1,191.51, and the decree of the orphans’ court of January 19, 1895, is now so modified.

The main question in controversy related to the liability of the estate on a bond given by the testator and others to secure the faithful performance of the duties of Ambrose McConomy as trustee under the will of William Whalen. We are of opinion that the conclusion reached by the learned auditor is correct, and that it is sustained by his very full and able report. •

The appellant is'not in a position to raise the question of the qualification of the new trustee, The People’s Trust, Savings and Deposit Company, to act. It is not a matter which concerns him in the least, and it was not called to the attention of the auditor or the court. Before the money is paid by the administrator it should be seen that the appointment is properly made.

The decree of the orphans’ court as modified is affirmed.