134 Pa. 390 | Pa. | 1890
Opinion,
After making provision for the payment of debts, etc., the testator, in and by his last will and testament, directed his executor therein named to convert all his estate, real and personal, into money, and gave the proceeds thereof, “together with all other my monies from whatever source,” to his said executor, in trust, to invest one third thereof in real-estate security, and pay the interest and income thereof to his widow during her natufal life; and directed that, immediately after her decease, the said one third should go to his three children, Margaret Ellen, Charles T., and Francis Ashton, subject to the same trusts and limitations as are thereinafter particularly set forth and declared with respect to their respective shares of his estate. He then gave one third of the residue to his said executor, in trust to invest the same as aforesaid, pay the interest and income thereof to his daughter, Margaret Ellen Ashton, during life, etc. Another third of said residue he gave to his said executor, in trust “ to invest the same upon
Testator’s daughter married, survived her husband, and died in June, 1873, leaving to survive her two children, William A. Ford and John A. Ford, the appellants. His son Francis died in November, 1886, intestate, unmarried, and without issue. Testator’s widow, Mary Ashton, died in September, 1887; and his remaining son, Charles T. Ashton, who never had any issue, died June 14, 1889, leaving to survive him his widow, Bridget Ashton, the appellee.
The fund for distribution is undoubtedly personal property, the proceeds of real estate which the testator directed his executor to sell. In itself, this was an out and out conversion, but in addition to that the real estate was actually sold and converted into money. The claimants on the fund were the two' nephews of Charles T. Ashton, William A. and John A. Ford, and his widow, Bridget Ashton. The former, as sole “heirs” of their uncle, claimed the whole, while his widow claimed one half of the fund. The Orphans’ Court decided in favor of the widow, and hence this appeal. 'The question is, who, under the words, “the right heirs of Charles T. Ashton in equal shares,” are entitled to participate in the distribution, and in what proportion ? Did the testator intend that, in the contingency that has happened, his two grandsons should take the entire fund to the exclusion of his son’s widow, or did he intend that the fund should be distributed among those who, according to the intestate law, would be his son’s distributees, in case the latter died possessed of the fund and intestate, and, if so, did he intend that they should take per. capita or otherwise?
Decree reversed, and record remitted for correction in accordance with this opinion, costs of this appeal, etc., to be paid out of the fund.