Jeffries's Estate , 18 Pa. Super. 439 ( 1901 )

Opinion by

William W. Porter, J.,

On March 29, 1895, the decedent executed two separate writings, both testamentary in form and substance. She died April 1, 1896. The papers referred to were both admitted to probate April 27,1896, without objection. In June, 1900, upon the adjudication of the account of the executor, the controversy before us arose. The paper which contains inherent evidence of being the first, gave the whole of the decedent’s estate to a trustee for her nephew, George L. Stewart, “ to pay to him the interest only.” This document contains the appointment of an executor and is duly signed, sealed and witnessed. The second paper recites: “ Know all men by these presents that I, Mary A. Jeffries, of sound mind, am about going on a trip away from home with my nephew, George L. Stewart, do hereby direct that in case of the death of both of us, that my estate shall be divided as follows.” Then follows provision for certain individuals (including the appellant). The concluding provision is: “I declare the above to be my will and testament in case of the death as aforesaid of myself and George L. Stewart.” This paper is duly signed, sealed and witnessed.

The query raised is whether by the form and substance of these two papers, the testatrix intended that the second should be effective at all events, or only upon the happening of the contingency of the death of both herself and her nephew during the contemplated “ trip away from home.” The question is not whether the second paper was properly admitted to probate. Both papers having been proven, the question is now essentially one of construction. The court below has held that the provisions contained in the second document were to operate only-in case the testatrix and her nephew should both die while on the trip in contemplation when the paper was signed. As this contingency or condition did not happen or arise, the provision dependent thereon became inoperative. This conclusion is demonstrated by the opinions filed in the court below and is sustained by the authorities upon which the decree is founded.

As the able and exhaustive presentation of this case by brief and argument by counsel for the appellant has failed to convince us that error has been committed, we unanimously direct that the decree be and it hereby is affirmed.