Conn's Estate , 65 Pa. Super. 511 ( 1916 )

Opinion by

Williams, J.,

The assignments of error raise three questions:

(1) The proper construction of the will of Lucy W. Conn.

(2) Whether the husband of the testatrix should pay the cost of the doctor, nurse, minister and funeral expenses.

(3) The correctness of the surcharge of $350 paid for enclosing the cemetery lot.

The will of Lucy W. Conn is as follows:

“Phila., January 28-1914

“This is my last request, that the cemetery lot be enclosed with a coping to correspond with my mother’s and a suitable headstone erected. •

“To my son Bert Wagner Conn I leave two hundred and fifty dollars to be used as a wedding gift, or education & business provided he develops into a good industrious boy. Should the coming heir be a daughter I request that my jewelry (except engagement ring) table silver and two hundred & fifty dollars be set aside for her until 18 yrs old provided she becomes a good girl.

“Should she not develope as desired or in case of her death I leave Mothers two rings to my sister’s Mary W. Powers, & Ella E. Wagner, rest to husband.

“All other possessions I leave to my husband Bert T. Conn to be disposed of as he thinks best.

“My engagement ring for him also.

Lucy W. Conn.”

(1) We are of the opinion that the court below properly held that the will made no provision for the child, Lane K. Conn, who was born after the date of the will. Section 15, of the Act of April 8, 1883, P. L. 249, provides, inter alia, that “when any person shall make his last will and testament, and afterwards shall marry or have a child or children not provided for in such will, ......although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate.” Under this act the will must show the testator had in mind the child to be born, and make clear his intention that his will shall apply to it: Randall v. Dunlap, 218 Pa. 210. The will must make some provision for it: Fidelity Company’s App., 121 Pa. 1. It is clear that the testatrix had no intention of providing for an after-born son.

(2) The husband, Bert T. Conn, was properly charged with the expenses of the last illness and the funeral expenses of his wife, Lucy W. Conn: Waesch’s Est., 166 Pa. 204.

(3) The testatrix having provided “that the cemetery lot be enclosed with a coping to correspond with my mother’s and a suitable headstone erected,” it was a legitimate charge to be made against her estate. The auditing judge apparently so found for he allowed the sum of $250 for the purpose, surcharging the accountant with the sum of $350 in the following language “and on account of cemetery — stonework (an allowance of $250 only out of an estate of this size appearing reasonable).” The auditing judge said in his adjudication: “There was no objection to the account which consists solely of personal property.” The accountant had claimed credit in his account for the sum of $600 for the stonework in the cemetery lot.

Ordinarily the items of charge and discharge in an account filed by an administrator or executor, being verified by oath, are prima facie proof of their correctness. This is particularly so in this case because the testatrix directed what should be done and it must be presumed, there being no evidence to the contrary, that the accountant did the work directed by the will and that the amount charged was proper. We are, therefore, of opinion that the lower court erred in surcharging the husband of the testatrix with the $350 on the stonework item.

The decree of the Orphans’ Court, as to the surcharge of $350 for stonework, is reversed, and the record remitted to the court below with direction to amend the decree of distribution in accordance herewith. The costs of the appeal to be paid by the estate.