158 A. 174 | Pa. | 1931
Testator and his wife were instantly and simultaneously killed in an automobile accident, leaving no issue of their marriage. They had each been previously married, however, and he left surviving one son by his first wife, while she had four children by her first husband, all of whom survived her.
In his will, testator provided, inter alia: "Third. All the rest and residue of my estate, I direct shall be divided into two equal parts: (a) One of these parts, I give, devise and bequeath to the Bank of Pittsburgh *397 National Association, in trust, to invest and reinvest the same and to pay the net income therefrom to my wife, Caroline McCord Hurd, in quarter annual installments. I likewise direct my trustee to pay so much of the principal of the said one-half part of my estate to her as in the judgment of my trustee may appear to be necessary for her adequate maintenance and support. At the death of my wife, my trustee shall pay the principal of her share of my estate or so much as remains in its hands to such persons and for such purposes as she shall by her last will and testament direct or appoint, or in default of a will to her heirs at law."
In subdivision (b) of this paragraph he gave the other half of his residuary estate to the same trustee for the benefit of his son, subject to certain conditions not necessary to be considered on this appeal. A later provision gave the trustee discretionary power in handling the two trust estates, both of which consisted of personalty only.
In the court below and here, the son claimed that there was no presumption of survivorship in the present case (Baldus v. Jeremias,
It is clear that appellant's right can rise no higher than it would have done had the widow predeceased her husband, in which event we have decided appellees would take. In Martha May's App.,
So far as we are advised the decision in that case has never been qualified or doubted in this court. It is quoted with approval by the orphans' court in Fahnestock's *399
Est.,
What we have said is conclusive of this appeal; hence it is not necessary to consider the minor points urged by appellant as a basis for his argument on the main question. It may not be unwise, however, to refer to a few of them. He claims that "it was testator's expressed intent that his wife should be the sole beneficiary of one-half of the residue of his estate." The will states a precisely contrary intent. It is true the wife was the primary object of testator's bounty; this is clearly expressed in the clause which directs the trustee, to whom this one-half is bequeathed, "to pay so much of the principal of the said one-half of my estate to her as in the judgment of my trustee may appear to be necessary for her adequate maintenance and support." But the gift to her is no more clearly expressed than the gift over on her death to her appointees by will, or, in default thereof, to her heirs at law. As we can readily give effect to both of these provisions, we must do so, just as was done in Martha May's App., supra, in Wunder's Est., supra, and by the court below in this estate. This point was also considered in Martha May's App., supra, at page 523, where we referred with approval to Smith v. Smith, 8 Simons 353, in the following language: "It was argued that the issue of a child were not objects of the original gift, but were intended to take by way of substitution for their parent, and consequently that the issue of a child could not take unless there was a possibility of the parents taking; that, as the father of the issue died in the testator's lifetime, he never had any possibility of taking, and therefore his issue was not entitled. This is the argument which has been urged upon us. But the vice-chancellor said that the testator meant, if a child died and left issue, the issue should take, though the child could not, and he ruled that the event which had happened, to wit, death *401 of a child within the testator's lifetime, was within both the general meaning and the words of the will."
It is also urged that by the use of the words "heirs at law" in the clause being considered, the wife was really given a fee, under the rule in Shelley's Case, which gift lapsed because she did not survive testator. The rule has no applicability, however, where, as here, the estate is all personalty (Gilmor's Est.,
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.