Beckert's Estate.

Wills--Distribution-Election of Widow-Life Estate AnnuitiesLegacies—“Remaining Beneficiaries.”

Where a testator gives a share of his estate to his widow during her life and after her death, until certain contingencies should occur, to their son; and such contingencies not having happened, the election by the widow to take against the will, requires distribution of such share to be made as if the widow were dead. The words "remaining beneficiaries" in a provision of a will reading, “And upon the death of any of the other beneficiaries his or her portion of such excess income share shall be paid to the remaining beneficiaries in equal shares," are held to include all beneficiaries named, unless a differentiation of the parties excludes one or more of the beneficiaries from participating in the shares of the beneficiaries who are dead.

Distribution. No. 320 June Term, 1920. O. C. Allegheny County.

J. M. Shields, for accountant.

W. S. Walsh, for Mrs. Beckert and Aaron L. Beckert.
A. B. Angney, for legatees.

MITCHELL, J., Sept. 22, 1920.-William C. Beckert, a resident of the City of Pittsburgh, died May 17, 1918, testate. His will was dated December 9, 1916. He was survived by no issue, but left his wife, Lodema Beckert, several brothers and sisters, nephews and nieces. The widow, who is still living, elected to take against the will of her husband. At the audit of the account of the executor of the estate there was distributed to the Peoples Savings and Trust Company as trustee certain property for the purposes specified in paragraph nine of decedent's will. The trustee has filed its first account and the question now arises how the income from the trust estate shall be distributed under the will. The ninth paragraph of the will is as follows:

"I give, devise and bequeath all the rest, residue and remainder of my estate, be the same real or personal, to The Safe Deposit and Trust Company of Pittsburgh, and its successors in trust nevertheless for the following uses and purposes, namely,-To manage the real estate, collect the rentals, pay taxes, make necessary repairs and improvements, and to keep my personal estate invested in good securities and out of the net income derived from both my real and personal estate to pay to my wife an annual income of Five Thousand ($5,000) dollars in equal quarterly or semi annual installments as may be most convenient to said trustees so long as she remains my widow, and should the income derived from my estate in any one year during the lifetime of my wife not reach the sum of Five Thousand ($5.000) Dollars, and my wife need or request pavment thereof in full, then in such event said trustee shall have full power and authority to mortgage or sell my real estate or use such portion of the principal of my estate either real or personal as may be necessary to make un such deficit so that my wife shall receive the full annuity of Five Thousand ($5,000) Dollars. Should my wife at any time remarry, then in such event the annuity of Five Thousand ($5.000) herein bequeathed to her shall be reduced to the sum of Twenty-five Hundred ($2,500) Dollars from the time of such remarriage. Should the net incom arisin from my estate so held in trust in any vear exceed the sum of Five Thousand ($5,000) Dollars as hereinbefore provided to be paid to my wife, or the sum of Twenty-five Hundred ($2,500) Dollars in the event of her remarriage, then in such event, I direct that the annual net income in excess of the annuity herein directed to be paid to my wife, shall be disposed of and paid out as follows: To my wife Lodemma Beckert I give and bequeath one-sixth (1/6) of said excess income.

To my sister Mary M. Beckert I give and bequeath one-sixth (1/6) of said excess income.

Beckert's Estate.

To my sister Mrs. Eliza Hoedle, I give and bequeath one-twelfth (1/12) of said excess income.

To my sister-in-law Mrs. Amelia Beckert, I give and bequeath one-twelfth (1/12) of said excess income.

To my sister-in-law Mrs. Anna Beckert, I give and bequeath one twelfth (1/12) of said excess income.

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To my brother C. Beckert, Jr., I give and bequeath one-twelfth (1/12) of said excess income.

To my brother George H. Beckert, I give and bequeath one-twelfth (1/12) of said excess income.

To my brother Theodore F. Beckert, I give and bequeath one-twelfth (1/12) of said excess income, and should he not survive me, then in such event the amount so to be paid to him shall be paid to his widow, so long as she remains his widow.

To my brother, Albert J. Beckert, I give and bequeath one-twelfth (1/12) of said excess income.

To Aaron L. Haines also known as Aaron L. Beckert I give and bequeath one-twelfth (1/12) of said excess income.

My said estate shall be kept invested by said Trustee, and the net income arising therefrom distributed until all the beneficiaries named in Ninth clause of my will, with the exception of Aaron L. Beckert, are deceased; and upon the death of my wife, her one-sixth (1/6) of the excess income shall be paid to her son Aaron L. Beckert until all the beneficiaries named in this clause, except himself, are deceased, or until his death should he die prior to all of the other of said beneficiaries; and upon the death of any of the other beneficiaries his or her portion of such excess income shall be paid to remaining beneficiaries in equal shares; and upon the death of all of said beneficiaries with the exception of Aaron L. Beckert, then out of the income derived from my estate, the following bequests shall be paid and in the order following. And the annuity payable to my wife shall after her death, and during the lifetime of any of the persons, except Aaron L. Beckert, entitled to participate in the excess income above her annuity shall likewise be appropriated to pay the following bequests, in following order:

To Aaron L. Haines also known as Aaron L. Beckert the sum of Ten Thous and ($10000) Dollars.

To Oscar M. Beckert the sum of Ten Thousand ($10,000) Dollars.

To Augustus Frischkorn in my employ, the sum of Two thousand ($2,000) Dollars.

To Edward Smith, my wife's brother, the sum of One Thousand ($1,000) Dollars.

To Aaron L. Haines, also known as Aaron L. Beckert the additional sum of Ten Thousand ($10,000) Dollars.

To St. Barnabas Home of McKeesport, if in existence, the sum of Five Thousand ($5,000) Dollars."

All parties in interest have agreed that the fund before us, being the income from this trust estate, is to be distributed among the income beneficiaries under the foregoing paragraph of the will.

Two questions present themselves:

First, the widow, Lodema Beckert, having elected to take against the will. how shall the one-sixth of the income provided for her be distributed?

Second, C. Beckert, Jr., Amelia Beckert, and Anna Beckert. income benficiaries mentioned in paragraph nine, having died, how shall their shares be divided?

The will of the testator as written is plain. However, the decision of the widow to take against the will upsets the scheme of the testator, and the distri

Beckert's Estate.

bution of the income in the trustee's hands is to be made as if she were dead. The testator had his wife clearly in mind as the preferred object of his bounty. He next is concerned for his brothers and sisters and the son of his wife, who is named Aaron L. Haines and also known as Aaron L. Beckert. Judging by the extent of the provision in the will for this stepson and the cumulative benefits he has received and will receive, it may be said that he came next to the widow of the testator in the plan of the will. Our duty is to approximate as closely as possible to the scheme of the testator and to ascertain from the whole will what was his intent. McIntosh's Estate, 158 Pa., 535.

Any benefit or interest which the widow had under this will ceased on her election not to abide by its provisions. A legacy, subject to the life estate of the widow and effective on her death, is accelerated and is presently payable, on her election to take against the will. Wyllner's Estate, 65 Pa. Super., 396. The effect of the widow's action in taking against the will on all the legacies and claims. under the will is as if she had died. There is nothing in the will before us to indicate that the testator had a different intention. This is the established law and is in harmony with numerous decisions. Ferguson's Est., 138 Pa., 208. This is not a case where some claimants can be more disappointed, or suffer beyond others.

The testator made no provision anticipating the widow might not take under the will, yet as was said in Vance's Est., 141 Pa., 201, a testator is presumed to know that a widow's statutory rights are paramount and that she may take against his will, and to this statement Mr. Justice Moschzisker, in Disston's Est., 257 Pa., 543, adds "that a testator is presumed to know also the general rule that the election of a widow to take under the intestate laws is equivalent to her death * * *""

The situation then makes distributable the income in the hands of the trustees to the living persons mentioned in paragraph nine, with the exception of Lodema Beckert, the widow. The annuity provided for her failed through her election. The income now before us takes the place of what the testator specifies as the income in excess of the annuity provided for the wife. One-sixth of this excess income is bequeathed to the widow and upon her death is to be paid to her son, Aaron L. Haines, until all the beneficiaries named in paragraph nine, except himself, are dead. He is now living, so we need not consider the provision after his death. Aaron L. Haines, or Beckert, contends that this income benefit or legacy is accelerated and that he is entitled to this one-sixth interest as if his mother had naturally died. The other income beneficiaries claim that this onesixth should be divided among all the persons living who are mentioned in the paragraph.

There is nothing in the will, expressed or implied, which would give any others an interest in this share. There is nothing to indicate that the testator had any person in mind who should have the benefit of this one-sixth share but his widow and her son. The statement is that this share was for his widow during her life and after her death, until certain contingencies should occur which have not yet happened, should be enjoyed by her son. The testator intended to fix the disposition of this one-sixth. In our opinion this one-sixth of income should be distributed to Aaron L. Haines the son of testator's widow.

The second question is, how shall the shares bequeathed to C. Beckert, Jr., Amelia Beckert, and Anna Beckert be distributed? The first two died before the death of the testator and their bequests fail. The third, Anna Beckert, died on July 10, 1917, after the testator's death, and it is also conceded by all parties that distribution should be made to George F. Berg, executor of her estate, of the prorata share of her one-twelfth of the income which had accrued to the time of her death.

It is claimed that Aaron L. Haines is not entitled to any part of the shares of

Beckert's Estate.

these three named beneficiaries; that the testator had two groups in mind in the ninth paragraph in the will, the first group consisting of the widow and her son and the other group comprising all the others named in the paragraph; and that the provision "and upon the death of any of the other beneficiaries his or her portion of such excess income shall be paid to remaining beneficiaries in equal shares" should be construed that the "remaining beneficiaries" do not include Aaron L. Haines. We can not agree to this. Both the words and punctuation fail to bear out this construction. Testator did not say that on the death of any of the other beneficiaries his or her portion shall be paid to the survivors of these "other beneficiaries," but to the remaining beneficiaries. We do not think the division into classes as indicated is evident from this paragraph; nor is there a differentiation of parties so as to exclude Aaron L. Haines as one of the “remaining beneficiaries" from participating in the shares of the beneficiaries who are dead. The fraction or share of the deceased legatees will be divided in equal shares among all the others, including Aaron L. Haines. The share of Anna Beckert in the income to the time of her death will be distributed to her executor. The decree of distribution will be made accordingly.

Wucherer v Wucherer.

Divorce Desertion-Efforts at Reconciliation-Payments on Order of Court.

A divorce was granted a husband on the ground of desertion where respondent had left their home and persisted in her refusal to resume marital relations. The libellant, after having asked her to return, should not be required to make any further efforts to induce her to return.

Payments made in compliance with an order of court on the ground of desertion cannot be considered voluntary contributions to the support of a wife in a divorce proceeding. In such a case the court may order additional payments as counsel fees.

Libel in Divorce. Exceptions to Master's Report and Rule for Additional Counsel Fees. No. 1920 October Term, 1919. C. P. Allegheny County.

Robert T. Houlden, for plaintiff.
William G. Saul, Jr., for defendant.

Before BROWN, MACFARLANE and CARNAHAN, JJ.

CARNAHAN, J., September 24, 1920.-The libellant is fifty-five years of age, and the respondent is forty-nine years of age. The libellant, at the time of marriage in 1912, was a widower with three children; the respondent was a single woman. They lived together until March, 1918, when the respondent left their home and has not since returned. The libellant charges willful and malicious desertion. The respondent claims that she was obliged to leave, because of her husband's "cruel, barbarous, brutal, indecent, and immoral conduct" towards her, and because he "ordered her out."

As we read the testimony, her claim is not sustained.

There is no question as to the absence of respondent from the family home during the full period required by law. The parties have not lived together since March, 1918. Some months after their separation, they accidentally met on a public highway. The husband says that he asked her to return. She says that his request was so coupled with conditions-among which was an apology by her to one of his children who lived at the home-that she could not comply. No other request for her return was ever made to her. The husband was and is so displeased with her attitude and conduct in actually leaving him, and, later, in

Wucherer v Wucherer.

refusing to return, that he has made and will make no further effort to induce her to return. We do not see why he should. He does not want her now, and, apparently, has had no desire to resume marital relations with her since the time she left him. She herself says that she does not want to go back to live with him. After their separation, the wife applied to the County Court of this county for an order of support; and he, waiving a hearing, agreed to pay her $2.50 a week, which he has done. We do not regard such payments as voluntary.

The Master recommends a decree of divorce, on the ground of willful and malicious desertion. We think the evidence justifies such a decree and that the exceptions to the Master's report should be overruled.

Respondent has obtained a rule on libellant for additional counsel fees; and libellant has filed an answer to the rule. The respondent has heretofore been allowed the sum of $25.00 for counsel fees. A further sum of $75.00, we think, would be reasonable; and an order to this effect should be made.

Stransky Manufacturing Company, Inc. v Alderman.

Pleading and Practice- -Affidavit of Defense--Sufficiency-Guarantee or Suretyship.

An affidavit of defense by a distributor of goods who guaranteed the payment of all goods received from plaintiff company was insufficient, which averred that plaintiff, not having paid the rent, defendant had vacated the office without removing the goods sued upon. The affidavit did not aver that plaintiff was to furnish an office and was liable to the full extent of his guarantee or suretyship.

Sur Rule for Judgment for Want of Sufficient Affidavit of Defense. No. 935 July Term, 1920. C. P. Allegheny County.

Morris, Walker & Boyle, for plaintiff.
A. M. Levin, for defendant.

SHAFER, P. J., September 29, 1920.-The action is upon an agreement to guarantee the payment of all goods sold to and received by one who had been appointed distributor of certain goods of the plaintiff company. The affidavit of claim alleges that certain goods were delivered to the distributor and that he had not accounted for Eight Hundred Dollars ($800.00) worth of them. The affidavit of defense admits this but sets up that the plaintiff failed to pay the rent for his office for the month of December as agreed upon, and therefore he was compelled to vacate the office, and that he went away and left the goods in the office and notified the plaintiff to go there and get them. It is not, however, denied that the demand had been made upon the distributor for an account at the first of December, and that he failed to make it, and it is not alleged that the plaintiff was to furnish an office for the distributor, or under what terms they were to pay any rent for it. We are therefore of opinion that the distributor has failed to turn the goods as his contract provided, or to pay for them, and that the defendant is liable upon his contract of suretyship or guarantee to its full extent, namely, Five Hundred Dollars ($500.00). The rule is therefore made absolute.