245 Pa. 118 | Pa. | 1914
Opinion by
The question involved is, was error committed by the court below in holding that the testatrix’s disposition of the principal of her residuary estate did not infringe the rule against perpetuities?
Amanda James died December 22, 1889, leaving to survive her two daughters, Mary A. Conover and Anna N. James, and three granddaughters, Mary A. Jacoby, Anna M. Cooper, and Henrietta Cooper, children of a deceased child; the two daughters subsequently died without issue, and this left the three grandchildren, who likewise have no issue, as her only heirs and next of kin.
Following several specific bequests to her two daughters and three granddaughters, in which they are designated by their respective names, the testatrix devises her residuary estate, “in trust......during all the period of my G-rand-children’s lives and the life of the survivor of them; all the net income therefrom to be paid to ali my grandchildren in equal parts, should either grandchild die leaving issue, child or children, said issue to take the parent’s share if one solely, if more, in equal parts the said net income to be paid to my grand-daughters and not to be subject to the control or intermeddling of any husband either of my grand-daughters may ever have. After the death of the last survivor of my Grand children.......for......my great grand children until each arrives at the age of twenty-one years — when the
In finally determining that the rule against perpetuities did not apply, the Orphans’ Court in banc accepted the view expressed on á prior occasion in an opinion written by one of its members and adopted by the auditing judge in the present instance, which reads, in part, as follows: “This residuary estate was also given...... in trust for the survivor of her grand-children’s lives and the life of the survivor, the net income to be paid to the grand-children, and in the event of death of either, to their issue, the income to be paid to ‘my grand-daughters,’ not subject to the control of any husband either might have. On the death of the survivor of the grandchildren the great grand-children were to receive the income until he or she, respectively, attains the age of twenty-one years, at which time they were to take their shares of the principal. It is apparent from a study of this residuary clause that testatrix used grand-children and grand-daughters interchangeably and this is accentuated by her speaking of her great grand-children as ‘he or she,’: yet her language is comprehensive enough.to embrace all grand-daughters and is not necessarily limited to the children of her then deceased daughter, Catherine, though in all probability, judging from other gifts to them, they alone were in her mind. The codicil, that of May 28, 1872, materially changes the provisions .of the will. Its’purpose is significant: ‘Desiring to do
Thus it may be seen, the court below held that the rule against perpetuities had not been infringed, because the will and codicils taken together (Shatters v. Ladd, 163 Pa. 509,) show the testatrix merely intended to provide life-interests for the grandchildren specifically named by her, and not for others who might subsequently be born. But the appellant contends that the disposition conflicts with the rule, in that a proper reading of the will and codicils shows a devise for life to grandchildren generally, and not exclusively to the particular grandchildren actually designated by name; in other words, that a child born after the death of the testatrix to either one of her two surviving daughters, would be entitled to a share of the income for life, and the ultimate distribution of principal would be postponed until the death of the last grandchild, including such after-born grandchildren, if any; hence, that there was a possibility of the rule being infringed, which is enough to avoid the whole disposition. The point involved is not free from difficulty; but after consideration of the able argument of counsel for the appellant and much thought upon the subject, we are not convinced of error in the view taken by the court below.
In addition to what we have excerpted from the opinion of the Orphans’ Court, it is to be noted that in the second codicil, immediately after the language already quoted, the testatrix provides, “It is my desire that my house-hold goods be......equally divided between my daughters and grand-daughters absolutely”; she then
What we have just stated, is a most likely explanation; for although the testatrix definitely declares in the fifth codicil that the principal is not to be distributed until after the death of her last “grandchild,” by this she must have meant, the last of the three living grandchildren previously named by her, and not grandchildren generally, otherwise the language would be entirely inconsistent, in that she would be in the position of indicating that future grandchildren born to her two living daughters should take principal upon arriving at twenty-one years of age and at the same time providing they should only take after the death of the last of her grandchildren, which would present an impossibility. Hence, if the language denoting the testatrix’s contemplation of the possibility of children to be born to and survive her two living daughters is to be given a rational interpretation, it must be that she meant, in the ultimate distribution of the principal of her estate, such after-born grandchildren should stand on a par with any children born to the three grandchildren she already had. This would accomplish “equal justice,” in accordance with the “desire” expressed by the testatrix in the second codicil; moreover, it would be a natural distribution on her part, for, although members of different generations, great grand
Of course, the two living daughters of the testatrix having died without issue, there is no possibility of grandchildren other than the three particularly named in the will, and therefore, it is not essential actually to determine what rights other grandchildren would take if in being; all we have said upon that subject is simply to show that the language in the third and fifth codicils which indicates the testatrix had in mind the possibility of other grandchildren coming into being, does not necessarily prove that she intended them, if bom, to take life-estates, or interests that would postpone the vesting of the ultimate remainders beyond the prohibitory period fixed by the rule. On the contrary, as we have endeavored to show, her language is readily susceptible of the other construction and suggests an intent to vest all remainders and bring about an ultimate distribution of principal within the required time.
It is true, as contended by counsel for the appellant, that the rule against perpetuities is one of law and not of construction, further, there is authority for his argument that every part of a will should be read as though the rule did not exist and “then to the provisions so construed the rule is to be remorselessly applied” [Gray on Perpetuities, (2d Ed.) sec. 629]. But notwithstanding these general principles, this court held in Coggins’ App., 124 Pa. 10, 29, per Paxson, C. J., that “Where the language of a will leaves us in doubt whether this rule has been transgressed, we may well resolve the doubt in
The assignments are overruled, and the decree is affirmed ; the costs to be paid out of the estate.