Gross's Estate

10 Pa. 360 | Pa. | 1849

Rogers, J.

(after stating the case.) — It is very clear from the terms of the will, that the objects of the testator’s bounty were the children of his and his wife’s brothers and sisters; and, inasmuch as the bequest is to them as a class, those only who are in being at the time of the testator’s death can take. The leading principle, in relation to such a devise, is, that where a bequest is to children in a class, children in existence at the death of the testator are alone entitled, among which posthumous children are to be considered. And it will make no difference, that the bequest is to children begotten, or to be begotten: 2 Wms. on Ex. 727; 1 Bro. C. R. 532; Davidson v. Dallas, 14 Ves. 576; Scott v. Howard, 5 Mad. 332; Northey v. Burbage, Pre. Chancery, 470; Heath v. Heath, 2 Atk. 121; Isaacs v. Isaacs, Amb. 348. The same principle is also ruled in Pemberton v. Parke, 5 Bin. 607. Chief Justice Tilghman states the rule thus: Where a man devises a sum of money generally, to be equally divided among the children of A., those only who are in being at the death of the testator shall take; the reason is, that it was the intent the legacies should be vested at that time, and that the legatees should then receive the money. Mr. Justice Yeate“s says: “ Where the devise or gift to the children is general, and not limited to a particular period, it is confined to the death of the testator.” This, then, being the general rule, is there anything to make this case an exception ? It is contended there is, because the devise is to the children, share and share alike, to them severally, and their heirs and assigns for ever. But it is difficult to distinguish this case from the rule, as stated by Chief Justice Tilghman, in Pemberton v. Parke. There it is to be equally divided among the children: here it is to be divided among them share and share alike — words conveying exactly the same meaning. It is clear, these words are not intended to designate the persons who are to take, to control the general expressions, or to determine the time when the legacies are to vest; but are designed to indicate the manner they are to' hold, viz., share and share alike, and the quality of their respective interests in the legacies, viz., an absolute estate. There is, therefore, nothing in these words to exempt the case from the operation of the general rule. It is, however, insisted, that the point is ruled in Sorver v. Berndt, antè, 213. But that case is clearly distinguishable from this. Sorver v. Berndt was decided on the peculiar wording of the will, indicating an intent to give to the children first; but if they were dead, then, by description, to the legal heirs, as descriptio personae of those entitled to take. The words in the will were, “I give and bequeath one-fifth part thereof to the children or legal heirs of my brother David Sorver, in equal shares alike.” In this case is used the copulative, there the disjunctive conjunction. It was supposed the legal heirs were intended in case of death, and that, therefore, grandchildren came within the description, and were intended to take. Nor do we see anything in the operation of the act of the 6th of May, 1844, which interferes with this construction. The act was intended to prevent a vested legacy from lapsing by death, which cannot apply here, as the legacies did not vest at all until the death of the testator.

Decree affirmed.