279 Pa. 368 | Pa. | 1924
Opinion by
These appeals involve the proper construction to be placed on the will, dated April 13, 1891, and a codicil executed in the same month, of William H. Kemble, who died September 16, 1891. The exact terms of so much of the will and codicil as are involved in the present case will be found in the notes of the reporter, published in connection with this opinion. The court below decided that appellants, the widow and the executors of a deceased grandchild of testator, took no interest in a share of income which had been enjoyed by the grandchild during his life, and that such income vested, at the
Testator placed his residuary estate in a trust to endure until the death of the survivor of his wife (who has since died), of his children (three in number, all of whom are likewise deceased) and of his grandchildren living at his death (some still survive), at which time the trustees are directed to convey the real estate and assign the personal estate “to such persons as would then take if I had died intestate at said date.” The widow having died, the trust for the income is, in the meantime, to pay to each of his children one-third thereof, “or if any child shall die leaving children [living] at my death to pay said child or children the income the parent would have been entitled to hereunder if he or she were living at the time of the payment.” (The word “living,” bracketed above, does not appear in the will at the place indicated, but it occurs almost immediately thereafter, and the opinion of the court below, from which the above correct outline of the will is taken, states it was conceded by all parties in interest that the insertion of the word as bracketed brings out and rightly expresses the intention of testator.) The codicil states that, if any of testator’s children die, his or her surviving husband or wife are to be paid, for life, one-third of the income bequeathed to the children of such deceased child, and “the remaining two-thirds only [are to] be distributed among my grandchildren” as provided in the will.
One of testator’s children, Clay Kemble, died leaving a widow, who, under the codicil, is admittedly entitled to one-third of his share of income, and two children, William and Florence; William died without issue, but Florence still lives, and the question presents itself whether she is entitled to the income received by her brother, during life, or whether that share is payable to the executors of William, or, his estate having been settled, to the latter’s widow as devisee under his will.
William H. Kemble evidently anticipated that which subsequently came about, the passing of his children leaving children to survive them; when the will was made, and at his death, five months later, he had living children and grandchildren, who became the beneficiaries of the income from his residuary estate, now enjoyed exclusively by the latter.
The will provides that only the grandchildren who survive their father or mother, as the case may be., shall be entitled to participate in the “quarterly payments” of' income, which are to continue until the death of all the children and the grandchildren living at the time of testator’s death; and it is contended by appellants that, since the will fails to state in terms what, on the death of a grandchild, becomes of the share of income theretofore enjoyed by that beneficiary, relevant rules of construction require the court to hold testator intended to vest this share in the grandchild for the full life, or period, of the trust, so that, on the prior death of such grandchild, it would become payable to the latter’s personal representatives, or, if the beneficiary had previously disposed of the income, or subjected it to the claims of others, then to the assignees or creditors.
The rules invoked by appellants have no application to the present will, because, as found by the auditing judge, the language employed clearly, discloses an intention to confine the payments of income (after the death of testator’s widow, and with the slight exception made by
When the terms of the will and codicil are considered as a whole, it appears that, after providing an income for his widow, testator’s real interest was centered on his children, and his grandchildren living at his death. His desire was to benefit these persons, known to him (and to a limited extent the surviving spouses of his children), by the income from his residuary estate; his descendants generally, or those then entitled as his heirs under the intestate laws, to recéive the principal at the
While the present will interprets itself without the need of authorities, yet the court below correctly cites, and follows the principle of, Maxwell’s Est., 261 Pa. 140; for the documents before us and the facts at bar more nearly approach the writings and facts involved in that controversy, and those in the cases there followed, than they do those covered by the earlier decisions relied on by appellants. As to testator’s intention to deal with beneficiaries in classes, Maxwell’s Est., supra, (p. 146), is enlightening; see also Johnson’s Est., 276 Pa. 291, 293, 295.
The decree appealed from is affirmed, costs to be paid out of the estate.