Campbell's Estate , 54 Pa. Super. 356 ( 1913 )

Per Curiam,

The decision of the principal question in this case turns upon the proper construction of the will of the testatrix. If the construction adopted by the learned auditing judge, and ably and earnestly maintained in his original as well as in his dissenting opinion, be the correct one, his conclusion that the claims of the principal legatees were barred by sec. 7 of the Act of April 28, 1855, P. L. 368, would be irresistible. In that view of the will, the decision in Wingett’s Est., 122 Pa. 486, would be directly in point and controlling. But notwithstanding what has been so well said by him and by appellant’s counsel in favor of that construction, we are constrained to the conclusion that the construction of the will adopted by the majority of the court is the true one. We cannot profitably add anything in support of that construction to what is contained in the concise and convincing opinion of the late President Judge Hawkins. In that view, the objection to the competency of the witnesses whose testimony is referred to in the first five assignments of error (but not quoted therein as Rule 16 requires) is not valid. As pointed out in the dissenting opinion of Judge Over, if there was an equitable conversion of the land, the residuary legatee was not personally liable, and the other legatees were competent) under that part of clause e, sec. 5 of the Act of May 23, 1887, P. L. 158, which reads: “or, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.”

We do not see that there is any room for doubt that the testimony of D. W. Wilson, if believed, was sufficient to rebut the presumption of payment as to him. See Second Nat. Bank v. Thompson, 44 Pa. Superior Ct. 200. And when his testimony to the effect that there was an agreement between the legatees that payment of the legacies should wait until the Wallace place was sold, is considered in connection with all the circumstances and the provisions of the will, we think there was sufficient to warrant a finding that the presumption of payment was rebutted as to them as well.

When the deposition of D. W. Wilson was offered in evidence, objection was made that it was not properly-taken, but it is stated in Judge Over’s opinion that this objection-was withdrawn at or before the final hearing, and, as this is not controverted by appellant’s counsel, we do not feel called upon to discuss this objection.

The assignments of error are overruled and the decree is affirmed at the costs of the appellant.