ESTATE: Christian KUHN, Et Al., April 1903, Blair County, PA
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Source: Blair County Orphans Court No. 39 1903
Written: April 1903
Orphans Court Book T page 419 and Book T page 459
No. 39 1903 Report of H. A. McFadden Esq Auditor appointed by your
Honorable Court to distribute the funds in the hands of Robert A.
Henderson Esq Administrator a b n c t a of Christian Kuhn late of the
Township of Frankstown County of Blair State of Pennsylvania, deceased
as shown by his first and final account filed as no 104 Oc 1902 was
presented to the court setting forth That having given due and legal
notice by publication in the Evening Gazette of Altoona and The
Democratic Standard of Hollidaysburg Pennsylvania two public newspapers
of general circulation published in the County of Blair and by postal
card to the members of the Blair County Bar and notice posted in the
Prothonotarys Office of Blair County as required by law and the rules
of this court your auditor fixed the 5 day of April AD 1902 at 9
o'clock in the afternoon at his office No. 13 Allegheny street,
Hollidaysburg, Blair County, state of Pennsylvania as the time and
place of the audit and at which time and place your auditor sat to
discharge the duties of his appointment and subsequent adjournments and
settings were had at said place on April 14, 1902, April 15, 1902,
April 16, 1902, May 2, 1902, May 10, 1902, May 21, 1902, May 26, 1902,
and July 30, 1902.
At the hearing April 5, 1902 appeared Robert A. Henderson Esq the
administrator a b a c t a of Christian Kuhn, late of Frankstown
Township aforesaid in person, also A. K. Figart as agent for Mrs. Anne
Myers a daughter of Christian Kuhn, and a claimant here appeared B. F.
Warfel Esq an attorney for George L. Kuhn son of Christian Kuhn
deceased, Dr. J. R. Humes a claimant against the estate of Jane Eliza
Kuhn, Christian Kuhn and Anne Myers of eighty six and 51/100 dollars at
said hearing it was developed by the testimony of A. K. Figart Esq
hereto attached and made a part hereof that George L. Kuhn, the client
whom Mr. Warfel claimed to represent had been dead since the 28 day of
October AD 1900 and the auditor thereupon informed Mr. Warfel that he
would not be recognized or heard in these proceedings unless he
represented some "alive" client or unless he raised administration on
the estate of George L. Kuhn deceased at a subsequent sitting. B. F.
Warfel Esq having raised administration on the estate of George L. Kuhn
as suggested by your auditor appeared representing B. F. Warfel
Administrator of George L. Kuhn deceased. At a subsequent sitting of
the audit the claim of Anne Myers was represented by R. A. Henderson
Esq. and Geo H. DoByne Esq, O. H. Hewit Esq presenter of claim of Dr.
J. A. Gold for $15.00 against Mrs. Anne Myers together with an order
from Mrs. Anne Myers that the same be paid out of her share of her
father's estate (C. Kuhn deceased).
To wit the convenience of the claimants and parties to these
proceedings numerous adjournments and settings were had by your
auditors. It was shown by evidence before your auditor (the original
testimony is hereto attached and made a part hereof) that Christian
Kuhn late of Frankstown Township aforesaid deceased having made his
last will dated June 12, 1873 died testate in said township on July 15,
1873 possessed of certain real and personal property and having as his
heirs and legatee (see testimony of A. K. Figart) the following named
children: Ann Kuhn Myers, George L. Kuhn, Andrew "Jackson" Kuhn, Jane
Eliza Kuhn (helpless invalid daughter) and a daughter-in-law Mrs. C.
Kuhn Jr all of whom were past the age of twenty one years at the death
of Christian Kuhn and he also left to survive him three grand children
George Fare, Elmer Fare and Harry Fare, children of a deceased
daughter. That the will of Christian Kuhn was duly admitted to probate
by the Register of Wills of Blair County on July 19, 1873 and Letters
Testamentary of said estate were then and there issued to William
Shinefelt and Adam Myers who settled up the bulk of the estate of said
decedent and later themselves died.
That later Jane Eliza Myers, the helpless invalid daughter of
Christian Myers [sic] died on (blank), and thereafter were the (blank)
day of (blank) 19 (blank) the Registrar of Wills of Blair County issued
Letters of Administration d b n c t c on the estate of Christian Kuhn
deceased to Robert A. Henderson Esq who on September 30 1901 presented
his petition to your Honorable Court for an order to sell the remaining
real estate of the decedent a house and a lot in the Village of
Frankstown, which was then and there granted.
Mr. Henderson the Administrator a b n c b a thereafter sold said
real estate on February 13, 1902 filed his first and final account of
the proceeds of said sale in this Honorable Court No. 10 4 Oct 1902
which account being presented was confirmed visi March 12, 1902 and no
exceptions being filed to the same your Honorable Court confirmed the
account absolutely on March 18, 1902. The said account showed a
balance in the hands of the accountant of $307.15 the proceeds of the
sale of the said real estate which balance is now before your auditors
for distribution.
It appearing from the testimony taken before your auditors that Jane
Eliza Kuhn, the daughter of Christian Kuhn was an extremely helpless
invalid from childhood. Testimony of A. K. Figart "had to feed her
like a child and Jane Eliza Kuhn was very feeble and helpless and had
to be waited upon in her private functions, cleaned and cared for like
a child."
Testimony of Mrs. Gretta B. Smith "she was very much deformed, she
sat in her chair for 56 years, she could not get around, could not walk
a step. Jane Eliza Kuhn was entirely helpless and had to be waited on
like a child."
Testimony of Mrs. C. Kuhn, "she was not able to get around and help
herself, she was confined to her chair all the time. She had to be
waited upon like a child."
Messrs DoByne and Henderson as attorneys for Mrs. Anne Myers
presented for allowance by your auditors a probater's claim for a
balance of $385.00 for nursing upon, nursing and caring for Jane Eliza
Kuhn during a period of -- years until the date of her death of the
said Jane Eliza Kuhn. It was shown by testimony that during that
period Mrs. Myers had waited upon Jane Eliza Kuhn like a child and did
the most menial and loathing offices for her even to removing the human
filth from her bed and clothing. It was also shown that although Jane
Eliza Kuhn had been a helpless invalid from childhood not one of her
other brothers or sisters (save Mrs. Myers) had come forward to nurse
or care for her or to give her the least personal attention.
In his will Christian Kuhn devised his residence in the Village of
Frankstown to his invalid daughter Jane Eliza Kuhn for her sole use for
life.
His will was written by A. K. Figart of Frankstown. After the will
was written Mr. Figart and Christian Kuhn talked over the feeble and
helpless condition of Jane Eliza Kuhn, the decedent's daughter and what
would become of her after his death. Mr. Figart testifies under
objection from Mr. Warfel "The property was willed to Jane Eliza Kuhn
for life after our talk I understood the whole property was to be taken
for her undivided use if necessary to keep her."
Jane Eliza Kuhn had no other source of income to live upon save the
house in which she lived and was frequently the object of charitable
contributions.
It was contended before the auditors by Mr. Henderson on behalf of
Mrs. Myers that she having performed all the services for Jane Eliza
Kuhn, that the funds should go to pay for the nursing and medical
attention and he cited the will, the testimony of the witnesses and
authorities to sustain his contention.
On the other hand to the same Mrs. Anne Myers, Mr. Warfel, attorney
for the estate of George L. Kuhn, deceased pleaded in the Act of
Assembly of June 8, 1893 relating to the real estate and as to the
strict verbal construction of the will Mr. Warfel cited against the
claim of Mrs. Myers the following authorities 1 Brewster 317.11Cc 559,
10 Low L Rev 171 87 Pa 87-432, 12 Montgomery 7-5 WNC 469-2 Phila '96 88
Phila 110 112 Pa 532-543-200 Pa 288-1 Yeotes 411-107 Pa 95-45 Pa 170 6
Watts 345-9 Superior Ct 305 - Vol 29 1st Ed Am. Eng Eury Law P. 372-375
11 Law Rev 185 in 53 Pa 74-88 Pa 491 to Pa 261-11 Phila 55.
The question on the claims of both the legal gentlemen Mr. Henderson
and Mr. Warfel resolves itself down to the question of what was the
intent of the testator.
As to the statue of 1893 the auditor rules that in view of the fact
that the decedent died July 15, 1873, twenty years before the passage
of the act, that statute does not apply to the present case.
It is such a well settled rule of the Supreme Court of the state of
Pennsylvania that the intention of the testator must be the primary law
to govern us in the construction of wills that the auditor will not go
further than to eke primary intent the cases of Truth's appeal 23 Pa 9
- Cresseans Estate 161 Pa 1127 and Jackson Estate 179 Pa 77.
After a full consideration of the facts, testimony will and
authorities cited the auditor is already of the opinion it was the
intention of Christian Kuhn to make full provisions for the care and
comfort of his feeble and invalid daughter even to the assumption of
the euxine property devised to her and we so rule that the real estate
devised to Jane Eliza Kuhn was given her for all her needs and support
and to be used by her and consumed to the last penny of its value if
need be and therefore we rule that the said real estate and proceeds
shall go to and be appropriated to the debts of Jane Eliza Kuhn and for
her nursing and medical attention rendered Jane Eliza Kuhn during her
lifetime, and after the payment of the costs and expenses of audit the
balance in the hands of the administrator be and is distributed to the
debts of Jane Eliza Kuhn as follows: to the costs of advertising audit
and postal card notices $6.00 to fees of H. E. Ferguson Clerk Orphans
Court cases in this report $5.00, Dr. Jno Humes medical bill $86.50
auditors fees $100.00, Dr. J. A. Gold medical bill by order of Mrs.
Anne Myers $15.00, Mrs. Anne Myers on account of her bill for nursing,
witness fees, Mrs. Gretta B. Smith a witness $1.00, fees of Mrs. Christ
Kuhn as witness $1.00 and fees of A. K. Figart as witness $6.72.
Table of Distribution
Name of claimant amt appropriated
Amount for distribution $307.15
Advertising audit 6.00
H. E. Ferguson Clerk O.C. this report 2/13/03 5.00
Mrs. Gretta B. Smith witness fee 1.00
Mrs. Christ. Kuhn witness fee 1.12
(Receipt of H. A. McFadden on file dated 2/13/03 for $50.00)
Auditors fees 100.00
Dr. J. R. Humes medical bill 86.51
Dr. J. A. Gold medical bill 15.00
Mrs. Anne Myers nursing bill part 185.80
A. K. Figart witness fee 6.72
Total $307.15
All of which is respectfully submitted
Harry A. McFadden Auditor
And now January 14, 1903 the within report read and considered and
confirmed by the court.
Nov 17 - Jan 1903 Exceptions filed by B. F. Warfel Atty for estate of
George L. Kuhn - H. C. Ferguson Clk O. C. per C. D. Bowers now Feb 13,
1903 on motion of H. A. McFadden the court orders and directs that R.
A. Henderson adm of Christian Kuhn decd pay to H. A. McFadden the sum
of fifty dollars account of his auditor fee, the balance of his fee,
said case to await the final disposition of exceptions to the auditors
report and also to pay H. A. McFadden the sum of eleven dollars
additional to cover the expense of advertisement and recording fees on
report by the the court. Now April 27, 1903 Opinion of Court filed as
follows: (continued on page 459)
The fund for distribution is the proceeds of the real estate of
Christian Kuhn deceased situate in the Town of Frankstown. The
testamentary distribution be made of said real estate is very precise
and explicit. The will provides: First I give and bequeath to my
daughter Jane Eliza, my property I now occupy in Frankstown for her
benefit during her natural life time; also all the furniture, including
beds and bedding ec then at her death the said property to be sold
(except the furniture in the parlor) and equally divided between Anne
Myers, Mary Ann Shinafelt, George L. Kuhn, Jackson Kuhn and Mrs. C.
Kuhn Jr.
We think the language employed is so explicit and unambiguous that no
room for construction, or interpretation is left and none is necessary.
The obvious intent of the language used is to limit the interest of
Jane Eliza Kuhn to a life estate; at her death the devices named would
be entitled to the proceeds of the sale of the real estate. "When the
words are plain the intent always follows the words." Cheeseman vs.
Wilt 1 y 441 the question is "What is the meaning of his words" Reillys
estate 200 Pa 288 "Where the language of a will is clear and
unambiguous, a variance suggested by extrinsic evidence as to testators
circumstances at the time he made the will cannot be permitted to
affect the construction of the will" Spouses Appeal 108 Pa 95
The court had occasion recently to apply the above well known legal
principles in a case very analogous to the present. McKinnon's Estate
No. 249 Orphans Court 1901. But the auditors would doubtless by a
desire to pay the very meritorious claim of Mrs. Anne Myers, permitted
himself to lose sight of and disregard them. Jane Eliza Kuhn was an
invalid, a helpless charge perhaps her sister Mrs. Myers after the
death of their father, Christian Kuhn, nursed her and cared for her.
But as Jane Eliza had no interest or stake in the fund for
distribution, we fail to see how Mrs. Myers can be paid for her
services out of said fund. We will, however only change the
distribution of the auditor so as to give to the administration of
George L. Kuhn the shares of George L. Kuhn and Jackson Kuhn, said
Jackson Kuhn having by writing dated October 9, 1876 assigned his share
to George L. Kuhn as no one is complaining of the distribution made by
the auditor excepting the administration of George L. Kuhn, it is
unnecessary to interfere with the distribution as to benefit the other
devices under the will of Christian Kuhn.
The amount for distribution $307.15
Direct costs of audit as follows
Advertising audit 6.00
H. E. Ferguson, clerk 5.00
Mrs. Smith witness 1.00
Christ Couse [sic] " 1.12
A. K. Figart " 6.72
Auditors fees 100.00
Total 119.84
$187.31
Each one of the distributes waived in will is entitled to a one fifth
of same. $37.48
The administrator of George L. Kuhn is entitled to two shares to wit
the shares of George L. Kuhn and Jackson Kuhn as Recd payment 4/21/03
B. F. Warfel Attny for auditor of Geo L. Kuhn 74.96
The amount $74.96 is to be deducted from the amount distributed by the
auditor to Mrs. Anne Myers. Therefore instead of paying to said Mrs.
Anne Myers $185.80 said sum of $185.80 will be paid out as follows
To admin of George L. Myers [sic] 37.48
" " " " " share of 37.48
Jackson Kuhn
To Mrs. Anne Myers nursing bill 110.84
To the extent above indicated, the exceptions one sustained, the other
exceptions are over. Northen Bell
Presiding Judge
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