Campbell's Estate

202 Pa. 459 | Pa. | 1902

Opinion by

Mr. Justice Mitchell,

Testator devised in trust for his daughters for life “ And from and after the decease of my said daughters respectively then the principal of the share of my said daughter so dying shall go to and be equally divided amongst her children absolutely and forever, provided however that in case of the decease of either or any of my said daughters without leaving any children surviving at the time of her decease then her share so dying to go to and be equally divided amongst her surviving brothers and sisters and the children of such of them as may then be dead per stirpes.”

One of the daughters, Mrs. Cochran, died leaving no child surviving at the time of her decease, but three grandchildren, children of an only child, William A. Cochran, who had died before her. The court below awarded her share to the executrix of her son Wm. A. Cochran, but appellants claim it as surviving brothers and sisters and children of such survivors.

When Mrs. Cochran died she left no children surviving, within the literal words of the will, and it may be conceded that the word “ children ” does not ordinarily include grandchildren, but it is equally clear that her grandchildren are within the terms of the gift by their great-grandfather, the testator. The manifest general intent of 1ns will was to send the shares of each of his daughters respectively down in the line of her and his blood per stirpes. If he had said “ decease without leaving any issue surviving,” it would have been beyond question and the plain intent of this whole provision in his will shows that he used the word “ children ” in the sense of issue, a sense which as remarked by the learned auditing judge, is sanctioned by the lexicographers and by the decisions in Haldeman v. Haldeman, 40 Pa. 29, and Potts v. Cline, 174 Pa. 513.

Appellants refer to Woelpper’s Appeal, 126 Pa. 562, as “ strikingly like the case at bar ” and so it is. The devise there was to daughters for life and upon their death respectively to the “surviving brothers and sisters .... provided that if my said daughters or any of them should die leaving lawful issue ” then to the issue. It was held that the word “ surviving ” referred to the death of the life tenants and not of the testator. The remainders therefore whether to brothers and sisters or to issue were contingent on surviving the daughters and were to be determined by the conditions existing at their death. The same rule is to be applied here. The only difference in the language of the two wills is in the use of the word “ issue ” there and “ children ” here, and as already said it is clear that the testator here used the word “ children ” in the sense of issue. As was said in that case the actual intent of the testator being clear there is no room for presumptions, and quoting from the opinion of Sharswood, J., in Reek’s Appeal, 78 Pa. 435, “All mere technical rules of construction must give way to the plainly expressed intention of a testator. ... It is a rule of common sense as well as law not to attempt to construe that which needs no construction.” When Mrs. Cochran died she left no surviving children but she did leave issue, the children of a deceased child. The contingency therefore upon which her surviving brothers and sisters were to become entitled never occurred, and her estate passed to her issue directly under their great-grandfather’s will. The court below should have awarded her share to the appellee not as executrix of William A. Cochran, but as guardian of his children. But that is an error of which appellants have no standing to complain.

Appeal dismissed with costs.