82 Pa. 528 | Pa. | 1876
delivered the opinion of the court, November 12th 1876.
In studying the will of the testator, Thomas S. Clarke, in order to arrive at his meaning in the second section of article 6, which has given rise to the controversy presented for decision in this case, it is evident that we must consider the whole scope of the instru-' ment in reference particularly to the bequests to his grandchildren.
Two primary intentions, we think, are very manifest. The first
But there was another primary intention, equally if not more important and prominent, in the mind of the testator. This was, that the legacies to his grandchildren should be equal in amount and value. He makes no distinction between those then living at the date of his will, each having set aside an equal number of shares of the same stocks; and as to those after-born, he expressly declares that they shall be of the same amount and value as those bequeathed to his living grandchildren. These last were not necessarily to be stocks of the same companies, for he declares very explicitly that his executors should provide or procure (not shall hold, which is the language used as to the stocks specially named in the preceding section) out of his residuary estate for each and every grandchild born after the date of. his will — not the same stocks, or stocks of the same companies — but stocks, any stocks, of the same amount and value.
If the will had stopped here, it is apprehended that there would be no difficulty in coming to the conclusion at which we have arrived, that the after-born grandchildren would be entitled to have set aside for them, to be provided or procured out of the residuary estate, stocks which should be of the same amount and value as one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company.
The questions would then remain, what did the testator mean by value, and as such stocks are fluctuating in price, as of what date is that value to be ascertained ?
The testator has added, in the clause before us, to the expression “ stocks of the same amount and value,” these words in a parenthesis, “viz., ten thousand dollars.” It is contended that this parenthetical clause means that the executors are to take from the residuary estate the sum of ten thousand dollars in money, and invest that amount for each of his after-born grandchildren as they come into being. But we think this construction is clearly inadmissible. It violates both the primary intentions of the testator. It is in effect a bequest originally of money, not of stocks, and it makes the legacies to the grandchildren unequal — it may be grossly so. It is clear that ten thousand dollars may not be sufficient to procure or provide stocks of the same amount and value as those bequeathed to the living grandchildren, if the market value of those stocks at the time of procurement has much appreciated above that in the contemplation of the testator when he made his will. On the other hand, if they have much depreciated, the amount would be much greater, though the value of the increased amount might be the same as that of the less amount. In-either event the shares
After what has been said it will scarcely' be necessary to consider what has been so urgently pressed by the learned counsel of the appellants, that the legacies to the after-born grandchildren vested at the death of the testator, and that it was the duty of the executors at that time to set aside stocks for the grandchildren who should afterwards be born. How can legacies for unborn children who may never come in esse be vested ? And how could the executors set aside stocks for them without knowing how many there would be, if indeed there would be any ? If the whole residuary estate is locked up until April 4th 1883, it is a necessary result of the provisions of the will by which the amount to be appropriated out of that estate is made to depend upon contingencies which may indeed happen before, by the deaths of Charles J. Clarke and Agnes S. Kennedy, but cannot be postponed beyond it.
The appellants, in their petition to the, court below, ask that an appropriation be made to James King Clarke, the after-born grandchild in question, out of the residuary estate, of the equivalent of one hundred shares of Pennsylvania Railroad stock and one hundred shares of Union Railroad and Transportation Company stock; that is, as we understand it, at the present market values of those stocks. We agree entirely with the learned judge of the Orphans’ Court that this is not admissible; for a change in the market value of the stocks might exhaust the estate to the prejudice of other beneficiaries, or the stocks might have become utterly worthless, and thus all equality have been defeated. Had the executors, with wise foresight, sold the stocks set apart for the living grandchildren, and invested the proceeds in other and safe stocks, and the stocks first set aside had become worthless, what would have been the condition of the after-born grandchildren under such a construction? It is true that these stocks may have much appreciated since the date of the will, and the after-born grandchildren will not receive what those then living now have. But that result is unavoidable. From the time these stocks were set apart, the legatees are to be regarded as the owners and entitled to all the advantages of their appreciation. Had the executors converted them into other stocks, which had doubled in value, it could not be contended that the after-born grandchildren would he entitled to stocks equal in value to such subsequent investment. Neither ought they to suffer by their depreciation.
We are of opinion then that the after-born grandchildren as they come into being should have set aside for them respectively stocks of the same market value as one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company were on the
Decree of the Orphans’ Court reversed. And now, No-' vember 13th 1876, it is ordered and decreed that the executors of Thomas S. Clarke, deceased, set aside from the residuary estate or invest in stocks, to be selected or bought by them, for each and every child of Charles J. Clarke and Agnes S. Kennedy that has been or may be born after May 30th 1867 and before April 4th 1883, such an amount as will be equivalent to the market value of one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company on the 30th day of May 1867.
And it is further ordered that the costs in the court below and in this court be paid out of the residuary estate of the said Thomas S. Clarke.