Appeal, 87 | Pa. | Mar 21, 1928
Argued March 21, 1928. Lizzie Kidd died on April 11, 1905, leaving a will dated April 25, 1901, with a codicil executed thereafter. She was survived by two heirs at law, her children, Frank and Blanche, the first of whom died intestate, unmarried and without issue, in 1912, and the latter, intermarried with Walter Carnes, died also without issue, testate, in 1916. The proper distribution of the balance in the hands of the trustees named in the mother's will is the question now in controversy. An award of it was made by an auditor, appointed by the orphans' court, to the collateral heirs of Lizzie and Adam Kidd, her husband. Upon exceptions filed, the distribution recommended was set aside, and the balance on hand directed to be paid to the executor of the surviving child of decedent, Blanche Kidd Carnes. The correctness of this adjudication is questioned on this appeal, and we are called upon to construe the provisions of the will under which all parties claim.
After directing the payment of her debts, and devising two houses to others, the testatrix established, by paragraph four, a trust fund in the amount of $200,000 for the benefit of her two children. She directed that one-half of the income should be paid to each, or their issue in case of their decease, and if either should die without issue, then his or her share of the income to be given to the survivor. By subsequent clauses of the same section of the will it was provided that "in case of the death of such survivor leaving no issue living to convey and pay over such entire sum as hereinafter provided for the distribution of my residuary estate."
By paragraph five any additional estate was disposed of. One-half thereof was given to each child, or the whole to the survivor, if either died leaving no issue. The property of decedent was not sufficient to furnish the amount fixed as the corpus of the trust fund, and there was therefore no sum immediately divisible as directed by the first named parts of the section referred to. *60 Two items follow, which give rise to the present controversy, and for the sake of a proper understanding of them they will be quoted. "5. In case of the death of both my said childrenprior to my own leaving issue of both or of either living at the time of my decease, to convey and pay over my said residuary estate to such issue so living by right of representation." "6. In case of the death of both of my said children prior to my own leaving no issue of either living at my decease, to convey and pay over my said residuary estate as follows: [one-half to the heirs at law of her husband, Adam Kidd, and one-half to brothers and sisters of decedent]."
Under the terms of paragraph four, — both children having died without issue after the decease of their mother, — the trust fund became distributable as part of the residue of the estate. The heirs at law at the time of testatrix's death were the son and daughter, who survived, and if there was no disposition of the remainder in case they outlived her, she died intestate as to this fund, and it must be distributed accordingly. The collaterals, referred to in clause six of paragraph five, were not heirs at law, and acquired no interest in the estate unless they can point to some specific legacy or devise, and all that appears is an interest in case the two children died prior to the mother. At no other place in the will are they mentioned, and any possible share they might have secured by the terms of the will terminated upon the decease of Mrs. Kidd leaving Frank and Blanche to survive.
The auditor came to the conclusion that the will taken as a whole showed an intention to keep the property within the families of the testatrix and the husband, and, since both of the children died without issue, clause six of paragraph five should control the distribution notwithstanding the express declaration that it should be effective only in case both children should die without issue prior to testatrix's death. With this finding, the orphans' court did not agree, nor do we. In construing *61
wills, the courts are concerned with the intention as shown by the language employed, and do not seek for some undisclosed purpose, which possibly was in the testator's mind: Packer's Est. (No. 2),
It is argued that, since there is a legal presumption that testatrix did not desire to die intestate, a construction should be made which would obviate this result, and such could be effected by holding that Mrs. Kidd intended her estate to pass to the collaterals in case both children died without children surviving. Numerous cases are cited to show the application of the rule that a general purpose of a testator is to be sought in construing doubtful provisions, but, as in all will cases, precedents are of little aid in reaching a proper determination, for the words of the particular instrument under consideration must control: Mifflin's Est.,
By paragraph four, the trust estate was established for the benefit of the children and their issue, and the residue given absolutely to the survivor of them. The collaterals were to share only in case all of the first takers should die before the testatrix. What remains of the trust fund became a part of the estate not expressly disposed of, and as to it there was an intestacy, and the same passed to the heirs at law as of the date of the mother's death. The rule applicable was thus *62
stated by Judge HANNA, approved by this court: Bell's Est.,
A situation similar to the one found in the case at bar was before this court in Gorgas's Est.,
Careful consideration of the will before us leads to the inevitable conclusion that testatrix died intestate as to the trust fund, which she established in paragraph four of her will. She did not dispose of it in any way, except in the contingency that both of her children should die before her, without issue, in which *63 event the collaterals were to share. Frank and Blanche acquired the remainder estate as of the date of the mother's death, notwithstanding the intervening trust established for their benefit. Frank died intestate, unmarried and without issue, and his property, including the share in question, passed to his surviving sister, who thereby became vested with all. She left a will, upon which letters testamentary were granted, and to the executor named the fund now for distribution was properly awarded.
The decree is affirmed at the cost of appellant.