257 Pa. 537 | Pa. | 1917
Opinion by
The question in this ease is whether or not a certain interest in remainder has been accelerated by the election of a widow to take against her husband’s will. The court below held in the negative, and William Dunlop Disston, the remainderman in question, has appealed.
The testator, William Disston, died April 5, 1915, leaving a will wherein he devised his residuary estate in trust to keep the principal invested, collect the income, and pay therefrom to Estelle M. Dunlop, a sister-in-law, $10,000 per annum, during the term of her natural life; the remaining income, and, after the death of the annuitant, all income, to be divided equally between the testator’s wife, his son (the appellant) and a daughter, Pauline Disston, the share of the latter being placed in trust. The testator then provided that in the event of the death of either his son or daughter, leaving issue, during the lifetime of his widow, the share of income of the one so dying should be paid to his or her issue; that should either of his children die without issue, during the lifetime of his widow, the income of the one so dying should be paid in equal shares to the widow and surviving child, so long as the former lived; further, that, upon the death of such surviving child, without issue, during the lifetime of his or her mother, all income, subject to the payment of the before-mentioned annuity, should go to the testator’s wife. As to the principal, subject to the annuity, at the death of his widow, the testator gave one-half of his residuary estate to his son, providing, however, that should the son then be deceased, the share in question should go to the latter’s issue; the other half he directed should be retained by the trustees named in his will, the income therefrom to be paid to his daughter for life, with remainder to her issue; he then provided that if either of his children should be dead, without issue, at the decease of his widow, the share of the one so dying should be paid to or held for the survivor; finally, should both children be so deceased, he gave the principal
The testator’s widow elected to take against his will, and, at the audit of the executors’ account in the Orphans’ Court, the son claimed one-half of so much of the principal of the estate as remained after his mother had been paid her share under the intestate laws; but he conceded that a sum sufficient to meet the annuity should be set aside for that purpose. The court below determined, however, that the son’s share must remain in trust so long as the widow lived, in order to prevent him from controlling the principal during that period, and to permit the alternative gifts in remainder to become effective should he die in his mother’s lifetime. The appellant claims this was error; that both his and his sister’s shares of the principal of the testator’s estate were accelerated by their mother’s election to take against her husband’s will; and that, after a sufficient sum is set aside to assure the payment of the annuity, he is entitled to an absolute award of one-half the residue.
The relevant rules of law are well settled with us. In Ferguson’s Est., 138 Pa. 208, 219, speaking by Mr. Justice Mitchell, we state the cardinal principle thus: “Devises or bequests, subordinate to a life estate in the widow and contingent upon her death, or payment of which is postponed until then, become presently payable upon her election to take under the intestate laws; as to its effect upon all claims under the will, her election is equivalent to her death; this is the general rule, and if there are any exceptions, they must depend on the expression or unavoidable implication of a contrary intent of the testator.” In Vance’s Est., 141 Pa. 201, 213, we said: “The laiv must have a settled and uniform rule, and it is that, as to the provisions in a will for legacies subordinate to a life interest in the widow and contingent upon her death, or payment of which is postponed till then, her election to take against the will is equivalent
The language last quoted is applicable here. It is apparent from a reading of the will that the testator’s paramount intention was to create a trust during the life of his widow, so that she might enjoy the income from, not one-third of his estate, but one-third of the income from his whole estate, and that, after thus providing for his wife, the primary object he had in view was to benefit his children. In other words, the testator intended to leave his residuary estate, subject only to his sister-in-law’s annuity, for the benefit of his wife and children, the former to receive one-third of the income for her life, and each of the latter a like proportion for the same period; when his widow’s interest should terminate, he intended his two children to take the whole principal, the son’s share being absolute and the daughter’s continuing in trust; and it seems evident that he postponed this distribution until his widow’s death for the reason that he desired the entire estate held intact, to secure her one-third of the income therefrom, rather than to set aside one-third of the principal for her benefit. Finally, the alternative remainders, after the devises to his wife and children, are substitutionary in character, and inserted to prevent the occurrence of a lapse should either or both of the children die during the continuance of the trust created for the purpose just indicated. This being the evident scheme of the will, and the plan having been interfered with by the widow’s election to take her share under the intestate laws, the acceleration of the remainder interests given to testator’s children would carry out his principal intent, and also adhere to his general plan
In a case like the one before us, the effort must be to find and carry out the testator’s chief intent with a minimum disturbance of the general plan of the will. After his wife, the testátor’s children were the natural and primary objects of his bounty, not their issue, still less nephews and nieces or their issue, and the alternative provisions for others, after the testator’s children, were undoubtedly intended as substitutionary, in case the latter died during the life of their mother, should she take under the will; but, as said by Mr. Justice Mitchell, in Vance’s Est., supra (p. 209), a testator is presumed to know that a widow’s statutory rights are paramount, and that she may take against his will; to which we now add that a testator is presumed to know also the general rule that the election of a widow to take under the intestate laws is equivalent to her death, and that, unless his will plainly indicates a contrary intent, remainders are accelerated accordingly.
Of course, an intent that there shall be no acceleration may be shown by inevitable implication, as, for instance, where the will itself fixes a definite time for distribution independently of the widow’s death, or expressly provides as to the effect of her refusal to take thereunder (Reighard’s Est., 253 Pa. 43, 53); or where a trust is created not simply to guard the widow’s life interest, but also for the benefit of a third party other than either the widow or remaindermen (Young’s Apps., 108 Pa. 17, 22); or, again, where, during the life of a widow, the whole income is given to her and another, the latter of whom, for apparent reasons, the testator would specially desire to enjoy his bounty to the full extent indicated— a mother, for example — and, after the life estate of the wife, remainders are limited to others in addition to the mother, so that, in case of acceleration, the income intended for the latter would be materially diminished dur
To sum up our conclusions on the law and facts here involved: In a case such as the one at bar, the literal provisions of a will may be departed from so as to carry out what appears to be a superior or preferred intent; but, when this is done, the object in view must always be “to approximate as closely as possible to the scheme of the testator which has failed by reason of intervening rights or circumstances” (Ferguson’s Est., 138 Pa. 208, 220). Where the widow, so long as she lives, is to receive a part of the income of the whole estate, and the balance of income, during her life, is given to testator’s children, with remainders of principal to the same children at the widow’s death, her election to take under the intestate laws will terminate a trust created for the purpose of holding the estate intact for her benefit, and accelerate the estates of the children just as effectually as though the provisions for the widow were that she was to enjoy the entire income during her life (Woodburn’s Est., supra); and the fact that the remainders given to the children may be contingent (Coover’s App., 74 Pa. 143, 147), or that alternative remainders may be provided for in the event of the decease of such children in the lifetime of the widow (Wyllner’s Est., supra), will not take a case out of the operation of the general rule, if,
■ The decree is reversed and the record remitted for distribution in accordance with the views herein expressed.