29 A.2d 3 | Pa. | 1942
By his will, James Hemphill, deceased, divided his residuary estate into five equal shares, one of which he gave in trust to pay the income to his unmarried son, Horace, for life. In the event Horace married and predeceased his wife it was provided the income from one-third of Horace's share should be paid to the wife during her lifetime. The income from the other two-thirds and, ultimately, the entire principal was directed to be paid to Horace's children, him surviving, in equal shares. Testator then provided as follows: "In case of the death of my said son, Horace F. Hemphill, unmarried and leavingno lawful issue, then the said one-fifth part or share shall . . . revert to and become part of my general residuary estate, and shall, as such, be divided equally among my other sons and daughters . . ." Horace married and subsequently died, leaving to survive him his widow, Elizabeth N. Hemphill, but no issue.
At the audit of the trustee's second account, Elizabeth N. Hemphill, acting as administratrix of Horace's estate, took the position that since he had not died unmarried the gift over to the other sons and daughters could not take effect; that an intestacy resulted as to the principal of Horace's share; and that the two-thirds thereof released from the payment of income by Horace's death should be distributed under the intestate laws. The auditing judge rejected this claim on the ground that the phrase "unmarried and leaving no lawful issue" must be read as "unmarried or leaving no lawful issue" to effectuate the plain intention of the testator; this construction was sustained by the court en banc after argument on exceptions filed by appellant; and the present appeal followed.
As said in Calder's Estate,
Decree affirmed at appellant's cost.