193 Pa. 45 | Pa. | 1899
Opinion by
Joseph Kelly died April 16, 1882, leaving a will made two years before, of which this provision became the subject of disputed interpretation:
“ 1st. I do give, bequeath and devise to the Fidelity Insurance, Trust and Safe Deposit Company of the city of Philadelphia in trust for the benefit and behalf of my brother, Edward P. Kelly, and my sister Mary A. Kelly, all my estate, real, personal and mixed of every kind whatever. And I hereby ■direct the said Fidelity Insurance, Trust and Safe Deposit Company to collect and receive the income of my estate and upon the receipt thereof to pay over the same into the hands of my said brother Edward P. Kelly and my sister Mary A. Kelly or their duly authorized agent or attorney; I hereby declare it is my will that my brother Edward P. Kelly and my sister Mary A. Kelly shall receive the income of my said estate absolutely, and the survivor of them, with power to them or the survivor of them to devise by any last will and testament they or either ■of them may choose to make.”
Both beneficiaries survived the testator; up to July 22,1898, the trustee paid to the brother and sister, each, one half the income ; the brother, Edward P. Kelly, then died, having first made his will, by which, among other bequests, he gave the residue ■of his estate to his nephew; this bequest would pass to the nephew whatever remaining interest he had under the will of his brother in that estate. At the date of Edward’s death the trustee had in its hands as principal of the fund bequeathed to the brother and sister, after deducting all expenses, $59,581.70, and income accrued at the death of the brother; $219.34. The learned auditing judge, Hanna, was of opinion that the true intent of testator, as shown by his will, would be effected by the trustee retaining the whole fund and paying to the sister, Mary A. Kelly, for life, the entire income; that she had the appointment by will, as to one half, and the other half would then go as already appointed by the will of Edward, the brother; that half the small balance of income, at the death of Edward, should be paid his executor. The Fidelity Company, executor of the will of Edward, filed exceptions to the
The court on hearing was of the opinion that by the death of Edward the purpose of the trust as to the other, the sister’s half, had been fulfilled, and therefore, she was entitled to this half absolutely; as to the half, the principal of which had been disposed of by Edward’s will, she was entitled during life to the income of that half, and as to it the trust continued until her death, the principal then passing by the will of Edward to his legatees; the decree, of the auditing judge was modified accordingly. Three opinions come up to us from the court below, which certainly demonstrate that the case has been most carefully considered. We admit it is a doubtful one, but a majority of us concur in the interpretation put upon the will by the auditing judge. There is no technical rule of construction which defeats the intent of the testator, if that intent be manifested by his words. We think the auditing judge has shown in his opinion : (1) that the testator intended to create a legal estate in the trustee for the lives of the brother and sister and the survivor of them, and they thereby had an equitable joint life estate during their joint lives ; (2) that he intended a remainder to the appointee by will of each one’s share of the principal of the joint estate, and that there is nothing in the will which ends the -trust as to the income of the estate or any part of it, and necessarily, therefore, none as to the principal during the life of the survivor. As all the opinions concur in holding the trust as an active, valid one, it follows that it would be inconsistent with the purpose of it to hold that it ended as to any part of the principal during the life of the surviving beneficiary.
We can add nothing of moment to what has been so well said by the learned auditing judge. The decree of the court below, in so far as it modifies the decree suggested by him, is reversed, and the decree made by him is adopted by this court and affirmed, costs of this appeal to be paid out of the fund.
