Appeal of Reichard

116 Pa. 232 | Pa. | 1887

Opinion,

Mr. Justice Stebbett:

Subject to the provisions of the first seven paragraphs of his will, the testator in item D. of the eighth paragraph, gave to three persons, and their heirs, the one sixth part of his estate, real, personal and mixed, “ in trust nevertheless to receive the annual income or profit arising therefrom and to pay over the same less all proper costs, charges and disbursements to my daughter Helena, wife of M. A. Holmes, for and during her natural life, her own receipt, whether married or sole, to be a good and sufficient voucher therefor. And from and after the death of my said daughter in trust to pay the said net annual income or profits to the child or children of my said daughter who shall be living at the time of her death, and the issue of any deceased child or children in equal parts (such issue taking always by' representation) until they shall severally and respectively attain the age of twenty-one years. And upon the further trust to pay over, convey and deliver to such child or children and such issue of any deceased child or children when and as they respectively attain the age of twenty-one years, his or her proper and respective share of the principal or corpus of said trust fund or estate.”

The second codicil contains this clause, viz.: “ Item D., paragraph eight, wherein by my will I have directed my executors to collect and receive the annual income and profit arising out of the one sixth part of my estate and to pay over the same less costs and charges to my daughter Helena for and during-her natural life is hereby revoked. And instead thereof my said executors.....are hereby directed to pay to my said daughter Helena, now intermarried with J. H. Swoyer, as soon after my death as they conveniently can, the sum of two thousand dollars.”

The single question presented by the record is, whether the testator by this clause of the codicil intended to revoke the whole of item D. of his will above quoted, or only so much thereof as relates to the payment of the annual income and profit of the one sixth to his daughter Helena.

A strictly grammatical construction of the language employed favors the conclusion that testator intended to revoke the whole of item D.; but, in view of all the provisions of the will and codicils thereto, so far as they tend to shed light on the subject, we concur in the conclusion reached by the learned judge of the Orphans’ Court, that he intended to revoke only so much of item D. as relates to the provision made for his daughter Helena, without disturbing the provision in favor of such of her children as may be living at the time of her death, and the issue of any deceased child; as though he had said: Item D., paragraph eight, in so far only as I have directed my executors.....to pay over.....to my daughter Helena for and during her natural life, is hereby revoked. In the codicil he repeats, in almost the identical language of the will, the clause creating the trust in favor of his daughter for life, and we have no doubt that was all he intended to revoke. Having revoked that clause, he substituted in lieu thereof the legacy of $2,000.00. If he had intended to revoke the whole of item D. it would have been unnecessary to repeat the clause referred to, for the purpose merely of designating the item itself. That could have been more conveniently and certainly done by describing it as “ Item D.; ” because it is the only item in the will designated by that letter. In the next line of the codicil he revokes the last paragraph of his will by describing it simply as the “ twelfth and last.”

Having rightly concluded that the life estate given to testator’s daughter Helena was revoked by the codicil without disturbing the remainder given to her children living at the time of her death, etc., it necessarily follows that, as to the income and profit of the one sixth in question, during Mrs. Swoyer’s lifetime, her father died intestate and hence it was proper to award that portion to the trustees, in trust to pay the income thereof, during her lifetime, to the heirs of testator, and, upon her death, in trust for her children, etc., as provided in the unrevoked portion of item D., paragraph eight, of the will. The assignments of error are not sustained.

Decree affirmed and appeal dismissed at the costs of appellants.

APPEAL OF CRANE, GUARDIAN.

The questions presented by this' record are substantially the same as those that have been considered and disposed of in Reichard’s Appeal, No. 361, of this term. For reasons given in opinion filed in that ease, we are satisfied there is no error in the decree.

Decree affirmed and appeal dismissed at the costs of the appellant.

APPEAL OF HOLMES ET AL.

It has been decided in Reichard’s Appeal, No. 361, of this term, that so much of item D., paragraph eight, of the will under consideration, as relates to the provision therein made for testator’s daughter Helena, was revoked by the second codicil without in any manner interfering with tire residue of that item creating a trust in favor of such of her children as may be living at the time of her decease and'the issue of any deceased child or children, etc.

According to express terms of the will, the net annual income of the trust is payable to the children only from and after the decease of their mother. Indeed, it is not payable sooner for the further reason that the beneficiaries of the trust cannot be ascertained until that event occurs. The children now living may not survive their mother, and in that contingency they will never become beneficiaries. Their interest is therefore contingent and not vested, and the learned judge of the Orphans’ Court was right in so holding. As to the income from the one sixth, accruing during the lifetime of Mrs. Swoyer, her father died intestate, and hence it is distributable among his heirs under the intestate law. The assignments of error are not sustained.

Decree affirmed, and appeal dismissed at costs of appellants. '