| Pa. | Jul 1, 1857
The opinion of the court was delivered by
Although this is a distribution of Barbara Herr’s estate, it is to be controlled by the will of her father John Herr; for the estate consisted of the unexpended portion of á fund which he bequeathed in trust for her for life with re
The question then fairly presented on the record is, whether Benjamin Eshelman, the only surviving child of Anna Eshelman, a daughter of the testator who died before he made his will, is entitled to take that share of the residuum which his mother would have taken had she survived both her father and her sister Barbara.
Looking through the will, it is observable that the testator provides specifically for his wife, his two grandsons then living, and for his sons John and Henry; and then directs that the residue of his estate, including also the sums charged on lands given to the sons, shall he divided into six equal shares among his six children, whom he names. Mrs. Eshelman is not named among his children, because he had in a previous clause taken notice of her death. In an after clause of th.e will he recites the imbecility of Barbara and appoints a trustee for her share, and then orders that after her death so much of her share as may remain unexpended shall go to “ all my children, or if any of them be dead, to their legal representatives share and share alike.”
It is argued that this language was intended to comprehend Mrs. Eshelman, and that her surviving son is thereby admitted to the bequest; but after an attentive consideration of all that has been urged both by the auditor and by counsel in support of this view, we are unable to adopt it for these two reasons :—
1. The testator, in providing specifically for his grandsons, declared that the $1000 given to them was to be “ their share or shares in full coming to them out of my estate both real and personal.” He looked to no further provision for them in any contingency which might befall his family. That he meant this bequest to be their full share of his estate is so incontestably proved by his words that any construction which would give them more, would derange the scheme of distribution he had in mind, and substitute another will for that which was written.
2. The hypothetical words quoted above, “ if they or any of them be dead,” must have referred to the children whom he enumerated as living when he made his will; because the event on which they were to succeed to Barbara’s share, was future — her death. It seems absurd to make the testator speak hypothetically of the future death of Mrs. Eshelman, whom he had already buried. The leading principle, said Judge Rogers in Gross’s Estate, 10 Barr 361, in relation to such a devise is, that where a bequest is to children in a class, children in existence at the death of the
If any of them be dead, is exactly equivalent to the phrase, If any of them shall be dead at the happening of the future event specified; and would any father speak of a deceased daughter in that way ? Whilst contemplating his own death and Barbara’s the testator did not forget Anna’s, for he mentions it, and provides for her children, and enumerates his remaining children, and of them exclusively — not of them including Anna, he says, if any shall be dead when Barbara dies, their representatives shall take. He had classified in his thought the several objects of his bounty, and appointed each a portion in their order. By his grandsons he meant the children of his deceased daughter; by his children and their representatives he meant his living children and those who should come after them. It is so apparent from all parts of the will that this was the distinction in his mind, that we cannot disregard it consistently with his unquestionable right to do as he would with that which was his own.
And now, to wit, May 19, 1857, this cause having been argued by counsel and considered by the court, it is ordered and decreed that the decree of the Orphans’ Court of the county of Lancaster confirming the auditor’s report of distribution made of the estate of Barbara Herr, be reversed and set aside so far as relates to the share awarded to Benjamin Eshelman; and that said share be distributed pro■ rata among the other distributees named in said report, and that the costs of this appeal be paid by the appellee.