Cressons' Appeal

76 Pa. 19 | Pa. | 1874

Judgment was entered in the Supreme Court, January 19th 1874.

Per Curiam.

This is not an easy will to interpret, but after a careful study of it we think the clause in the fifth item, “ who shall then be living,” refers to the children living w'hen the property devised and bequeathed to them should vest in the children, to wit, at the testator’s death. A few of the reasons leading to this conclusion are these. The word “ then ” in the clause refers to no distinct time by grammatical construction or manifest intention. Its reference is to be discovered rather by the subject of the item, and the intention drawn from the whole will. Had the subject of the fifth item been wholly the same property devised and bequeathed to the widow for life, the subject itself would have indicated her death as the period of vesting in the children. But it is obvious that the property disposed of in the fifth item embraced the entire remainder of the testator’s estate. When he determined to settle his worldly affairs, he purposed to dispose of all his estate. He began by providing for his_ wife, and when he had finished that provision his mind evidently turned in the fifth item to making a provision for his children. They were very young; he himself was a young man, in good health, and with a prospect of much longer life than that which awaited him. It was natural he should think it would be years before his own death, while some of his children might die before him. His mind taking in the scope of these circumstances would naturally run forward to the distant period which rose to his view, and he would seek to settle his estate according to the circumstances as they thus appeared to him, by willing all the "remainder of his estate, not given to his wife, to those of his children who should be living at his death ; and therefore he devised and bequeathed this remainder to all of his children who should be then living. The sentence is evidently elliptical, not coming up to the fulness of his thought.

This intent is strengthened by the clear intent found in the sixth item, that his children should have an estate immediately at his death, for he appoints a guardian of their estate, while he appoints his wife guardian of their persons in accord with the evident intent drawn from the fourth clause, that she and they should remain together a.s a family, and their boarding be provided for out of the annuity. The intent in the fifth item interpreted along with the sixth item, to provide an immediate estate for his children at his death, is inconsistent with an intent to suffer their estate to become ambulatory until the widow’s death, if that be the period referred *25to by the word “then.” The expression “then” being obscure in reference, all the other considerations arise which give a preference to a vested estate instead of one that is contingent, and to furnish a substantial provision for the education and clothing of his children in addition to their boarding: otherwise his provision for them would be illusory, and a large amount of his estate left without any useful or proper disposition of it during the lifetime of his wife.

Upon the whole we think the Orphans’ Court came to a correct conclusion, and the decree is therefore affirmed with costs, and the appeal dismissed.