140 A. 649 | Pa. | 1927
Argued December 6, 1927. The only question involved in these two appeals is whether or not testator's will provides for the distribution of income accruing on shares given to a son and a daughter for life, between the dates of their deaths and that of the last survivor of testator's children. The court below held that it does not, and awarded this income *40 as upon an intestacy. The extreme length and complexity of the will open wide the door to all sorts of arguments regarding it; but, on the point now being considered, it is not so complex as at first appears, and an analysis of it compels an affirmance of the decree.
Testator devises his residuary estate upon spendthrift and separate use trusts, to pay his two daughters, naming them, certain sums for life, any surplus to be expended to pay off the mortgages on his properties, with power to the trustees to convert the principal of the estate and appropriate the proceeds to liquidating the mortgages, and to invest the surplus, if any, in the way there stated. At the time of his death such mortgages existed, but none of them were paid out of income. He next provides for the carrying on of his business; and then declares that, after his real estate is clear of encumbrances, the surplus income shall be distributed between his two daughters (specifying who they are by reference to preceding paragraphs of the will where they are named), and his two sons, naming them, in the way stipulated "subject, however, to the following clause or paragraph," which provides that the trust shall continue for the benefit of all four of his children for life (designating them by reference to an earlier paragraph where they are named), under spendthrift and separate use trusts, and that any of the children might will his or her share of the corpus to testator's other children or a named daughter-in-law, "subject, however, to the provisions made hereinafter for the distribution of my estate," which state exactly how it shall be distributed, and hence probably render nugatory the supposed power of appointment. Testator also gives to the majority of his children an authority (which they have not attempted to exercise) to have the trust dissolved, except as to the share of one of his sons (which is not affected by the decree of the court below), and then provides that after the death of all his children, the trust shall continue for the benefit of his *41 grandchildren or their legal issue, upon like spendthrift and separate use trusts, "until the decease of all my grandchildren now living, — after which the corpus or principal of my estate shall be divided among the legitimate heirs of my grandchildren" in the way there specified.
Two of the children, whose shares are affected by the decree, have died, without attempting to exercise the supposed power of appointment; one child still survives; the trustees filed an account, showing income accruing after the deaths of the two, and, as stated, the court below awarded, as upon an intestacy, the parts thereof which they would have received if living. If only the language of the will is to be considered, the foregoing analysis demonstrates that no other conclusion is legally possible; for the will does not state to whom, after the death of a child, the subsequent income on his or her share shall be given, except as it specifies that the income which accrues after all the children have died shall go to the grandchildren.
Appellants contend, however, that the initial gift of the income is to the children as a class, and hence there is an implied gift or cross limitation over to the survivors, which construction is especially required, because of the presumption that testator did not intend to die intestate as to any part of his estate. This presumption, they claim, is of greater dignity than the one upon which the court below and appellee partly rely, namely, that the heir is not to be disinherited except as the result of express words or necessary implication, though we have repeatedly said that they have exactly the same force and effect: Grothe's Est.,
Under varying facts, the authorities on the point involved seem conflicting, though they are not really so, it being still true, "as we have said many times before, [that] precedents are of little value in the construction of wills, because, when used under dissimilar circumstances and with different contexts, the same words may express various intentions": Reiff v. Pepo,
We there said (
The decree of the court below is affirmed and each appeal is dismissed at the cost of the appellant therein.