Conford, Labrecque and Fulop. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant Elva Dunning is the surviving spouse and executrix of the estate of Charles Dunning, deceased, he being one of three conditional legatees named in the will of their mother, Anna Dunning, to share equally in the assets to be passed under the residuary clause thereof. The other two are plaintiff Elizabeth E. Beckham, executrix of that will, and Archibald E. Dunning. This matter comes to us on defendant's appeal from an order of the County Court directing distribution of the residuary estate in equal shares to plaintiff and Archibald Dunning.
A detailed exposition of the pertinent facts is necessary for a full understanding of defendant's appellate arguments.
The will here involved made specific provisions for the three children of testatrix, the residuary clause thereof, paragraph THIRD, providing:
"All the rest, residue and remainder of my estate, I give, devise and bequeath absolutely and in fee to my issue per stirpes. In the event that any child of mine predeceases me or dies prior to receiving his or her share of my estate, without leaving issue surviving, then the share of the child so predeceasing shall be divided, per stirpes, between my surviving children and issue of deceased children."
At her death on September 16, 1966 testatrix' residuary estate consisted of shares of stock in the Philadelphia National Bank, valued at $7,590, and several bank accounts, worth in the aggregate approximately $17,000. The will was probated and plaintiff qualified as executrix September 27, 1966. She made partial distribution of the residuary estate in November 1966, delivering to each of the other two of testatrix' children, including defendant's decedent, and to herself, a one-third share of the stock certificates. Charles'
shares, at his request, were made out to himself and his wife jointly. A New Jersey transfer inheritance tax return and a fiduciary income tax return were filed by plaintiff shortly thereafter, each representing that testatrix' three surviving children were testamentary beneficiaries.
On May 9, 1967 plaintiff's attorney forwarded to her several copies of a release, refunding bond and an informal account; the attorney directed that in advance of distribution of the remainder of the residuary estate each of the three children-beneficiaries should execute a release and refunding bond, which recited receipt of $5,234.58, and give written consent to the informal account. Pursuant to her brothers' requests, plaintiff "took [the documents] to [her] office [in Philadelphia] and photostated everything they wanted photostated. * * * [She] took them home with [her], put them together, took them to the office, and mailed them in the post office the following day." Although plaintiff had received the documents from her attorney on May 10, 1967, they were not mailed to her brothers until May 18, 1967. The delay was due in part to "household duties. I do all my own work. That comes first."
Charles Dunning received and read the papers on Friday, May 19, 1967, but although he was satisfied with them he did not sign them, as he was at that time preoccupied with plans for a family wedding scheduled for the next day. Charles and his wife attended the wedding on Saturday, May 20, 1967, and shortly after their return home Charles suffered a massive coronary attack and was taken to Delaware County Memorial Hospital in Pennsylvania, where he was placed in the intensive care unit. Plaintiff received a call from Elva Dunning at 11 P.M. that night, May 20, advising of Charles' illness. She was told he was not allowed to receive any visitors but his wife.
By Sunday morning, May 21, 1967, Charles' condition had taken a turn for the better; he was laughing and joking and "he asked [Elva] to bring in the papers so that he could sign [them, but she] just wouldn't do it, [because
of his condition]." Sunday evening Elva telephoned plaintiff again and this time told her she could visit her brother the next day, Monday the 22nd. Plaintiff did visit that day but did not bring with her the estate check for Charles' share because, she said, "why would I bother a man as ill as that with a check?" and she "never gave the check a thought." Plaintiff said she did not expect Charles to die; her other brother, Archibald, had had a similar attack several years before and had recovered completely. Charles, still hospitalized, ...