Opinion
October 7, 1954.
November 8, 1954.
Wills — Construction — Intent — Insufficient estate to pay all legacies — Periodic payments out of income — Deficiency — Payment out of principal.
Where testator provided that monthly payments should be made for life to specified beneficiaries "out of the income of my estate", and also provided for various pecuniary legacies, payment of which was postponed because the entire estate was set aside to pay the income beneficiaries but was insufficient to pay them in full; and on the audit of the final account the income beneficiaries filed claims for arrearages of income in an amount in excess of the total estate; it was Held that (1) the testator's intention was controlling, (2) testator did not intend the arrearages in income payments to be made up out of principal to the detriment of the pecuniary legatees, and (3) the court below properly dismissed the claims.
Argued October 7, 1954. Before STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 270, March T., 1954, from decree of Orphans' Court of Allegheny County, 1940, No. 749, in Estate of John Elmore, Deceased. Decree affirmed.
Audit of seventh and final account of successor trustee. Before BOYLE, P.J.
Adjudication filed denying claim for arrearages out of corpus and awarding pecuniary legacies in full; exceptions to adjudication dismissed and final decree entered, before BOYLE, P.J., Cox and RAHAUSER, JJ., opinion per curiam. Income beneficiaries appealed.
Testator died in 1926 leaving an estate which was insufficient to pay all the pecuniary legacies and to provide a fund to yield adequate income to pay the life beneficiaries the amounts provided for them. In Elmore's Estate, 292 Pa. 571, the Supreme Court described the scheme of the will and held that the income beneficiaries were the object of testator's first consideration and that the whole estate, if necessary, should be set aside to secure the payment of the prescribed monthly payments to them. However, the income from the entire estate was insufficient for many years to make these payments in full and income was prorated among the income beneficiaries. Upon the audit of the final account in 1954 some of the income beneficiaries filed claims for the arrearages in income payments. These claims exceeded the entire estate, which was sufficient to pay all the pecuniary legacies. The will provided that the life payments of income should be paid "out of the income of my estate", described the gifts as "legacies" but did not refer to them as "annuities". The court below held that (1) it was not testator's intention that the arrearages in the payments of income to the life beneficiaries should be paid out of his estate and (2) they were estopped to assert their claim.
Robert W. McWhinney, with him McWhinney McWhinney, for appellant. C. Elmer Brown, with him Charles P. Pearson, for appellees.
The definitive decree of distribution is affirmed on the adjudication and opinion of President Judge BOYLE, at the cost of appellant.