88 Pa. 478 | Pa. | 1879
delivered the opinion of the court, May 5th 1879.
Lewis Ryan died in 1850, leaving three daughters, Ann, Martha and Mary, and five grandchildren who were the children of his deceased daughter Catherine, wife of Philip Reilly. After making specific disposition of a part, the testator gave all the rest, residue and remainder of his property, real, personal and mixed to trustees, with full power and authority to sell, invest and collect the income
The testator’s daughter Martha died in 1865, without issue, and without having exercised the power of appointment with which she was clothed by her father’s will, and the present contention has arisen in regard to the proper construction of the italicized portion of the residuary, clause above quoted. The children of Mrs. Reilly, appellants, claim that they are entitled to participate in the share or portion of the residuary estate which was held in trust for their aunt, Martha Ryan; while, on the other hand, the appellees contend that, by the terms of the will, they are excluded, and have no
The auditor and the Orphans’ Court held that upon Martha’s decease, without children and without having exercised the power of appointment as- to the principal, the right to receive the income in equal proportions vested in her surviving sisters Mary and Ann, subject to the life-interest, of the latter under Martha’s will, and that therefore each was entitled to appoint one-half of the principal by will. It appears to us that this is the only construction of which the clause under consideration is fairly susceptible. If the testator had omitted the phrase “ for the use and benefit of my surviving children,” or had added thereto the words “ and grandchildren,” or if we were at liberty to construe the word children as including grandchildren, there would be no difficulty in giving effect to the will in favor of appellants; but there is nothing in the instrument that would justify us in striking out or supplying these words respectively, or in enlarging the meaning of the word children so as to embrace grandchildren. It is the well-established rule of construction in this state, as well as elsewhere, that the word children in a will does not include grandchildren, unless it appears from the context to have boon so intended by the testator, or such meaning is necessary to carry out his manifest intent, neither of which appears to exist in this case. Nor is the meaning of the will rendered so doubtful by antagonistic clauses or the use of ambiguous language as to justify a departure from the ordinary rule, requiring a testamentary paper to be construed according to its natural and ordinary import. If the will contained such clauses, or if such ambiguous language was employed as to render its meaning doubtful, it would be our duty to adopt that construction which would, as nearly as practicable, bring about equality of distribution, llut we fail to find in this will any such inconsistency or ambiguity as would justify the application of this principle.
Upon the happening of the contingency, which occurred on the death of Martha, the capital representing one-fourth of the residuary estate was directed to be continued in trust. For whose benefit was the trust continued ? The will says, “ for the use and benefit of my surviving children.” Those are both natural and apt disposing words, and the only words in the sentence under consideration that are really descriptive of the beneficiaries. Then follow the words “in equal proportions,” indicating how the surviving daughters are to take. Then again when we inquire what was the character of the trust under which Martha’s share of the principal was to be continued, the language of the will furnishes the answer, “under the same trusts as hereinbefore provided.” The surviving
The difficulties attending the construction contended for by the appellants have been so fully pointed out by the learned auditor that it is unnecessary to add anything thereto. It may be that the testator intended that his grandchildren, the appellants, should, together with his surviving children, be beneficiaries of the continued trust, but if he did, he failed to use language expressive of such intent; on the contrary, we think the language employed evinces a contrary intention.
Decree affirmed, and appeal dismissed at the costs of the appellants.