197 A. 528 | Pa. Super. Ct. | 1937
Argued November 8, 1937. This appeal raises a question as to whether a bequest in a will vested in a legatee at the time of the testator's death.
Levi F. Knerr died October 13, 1932 leaving his residuary estate in trust first to pay a portion of the net income to his wife and to use a part thereof for her benefit in maintaining a residence for her, and then to distribute the balance of the net income "to my [his] son, Edward H. Knerr, or his heirs and my [his] daughter, Nellie E. Nyce or her heirs." He directed *385 that after the death of his wife the principal of the trust estate and the proceeds of the sale of his real estate, given the wife for life, be distributed "One-half (1/2) equal share thereof to my [his] son, Edward H. Knerr, or his heirs, and the remaining equal one-half (1/2) share thereof to my [his] daughter, Nellie E. Nyce, or her heirs." Edward H. Knerr died November 13, 1934 and the widow of the testator is still living. At the time of the son's death his interest in the estate of his father was subject to the lien of an attachment execution in which the liquidating trustees of The Pennsylvania Trust Company are plaintiffs. An account filed by testator's trustees discloses that there has accumulated since the death of Edward H. Knerr, income, to which he would have been entitled if living, in the amount of $649.60. This sum is claimed by the liquidating trustees and by the heirs of the son, his widow and daughter. The court below awarded this sum to Edward H. Knerr's widow and daughter and the attaching creditor has appealed. It will be observed that the property now in controversy is personalty, that the son, Edward H. Knerr died after the testator and that the widow is still living. We are of the opinion that Edward H. Knerr took a vested interest in the income bequeathed to him and that this conclusion is not affected by the fact that the testator in creating that interest used the word "distribute."
The appellees contend that by reason of the use of the term "or his heirs" there was a substitutional or alternative bequest to Edward H. Knerr's heirs and on the death of Edward, after his father, his wife and daughter became entitled to the income as a gift directly from the testator. We are unable to agree with this construction. There have been numerous decisions of the Supreme Court interpreting wills where legacies were given to a person or his heirs. In Patterson v. Hawthorn, 12 S. R. 112, the testator directed his *386 real estate to be sold, the proceeds to be put out at interest and the income to be paid to his wife for life. The will then provided: "And at the decease of my beloved wife, Mary, I do allow the price of my land shall be equally divided among my two sons, . . . . . . and my daughters, . . . . . . or their heirs, in six equal parts." It was held that a daughter who died after the testator and during the life of the mother took a vested interest, the court there saying: "Where a legacy is given to a person, to be paid at a future time, it vests immediately; but where it is not given until a certain future time, it does not vest until that time; and if the legatee dies before, it is lost." It was further said that by use of the words "or their heirs" the testator meant that it should go to the legatee's legal representative, the administrator of the daughter.
In Muhlenberg's Appeal,
"Where a legacy is made payable at a future time, certain to arrive, and not subject to condition precedent, it is vested where there is a person in esse at the time of the testator's death capable of taking when the time arrives, although his interest may be liable to be defeated altogether by his own death": McCauley's Estate,
If there be any doubt as to the vesting of the controverted interest and the meaning of the phrase "or his heirs" it was settled by Golden's Estate,
Applying these principles to the Knerr will, since Edward H. Knerr was living at the death of his father, he took a vested interest. The expression "or his heirs" meant that if Edward H. Knerr predeceased his father his wife and child would have taken a like vested interest. This they did not do.
The appellees in support of their contention that it was an alternative or substitutional bequest to the wife and daughter of Edward H. Knerr relied upon the Act of June 29, 1923, P.L. 914 (
We cannot see that the Act of 1923 has the slightest *388 application to the present situation. That act changed the previous rule with relation to remainders so that the donor's or testator's heirs in certain circumstances "shall be construed as meaning the person or persons thereunto entitled at the time of the termination of the estate for years or for life or upon condition under the intestate laws of the Commonwealth as they shall exist at the time of such termination." It refers to persons who are heirs of the testator and not those of the legatee as here. Further, the widow of this testator is still living.
The rule with reference to the meaning of the word "or" is also irrelevant. As we have pointed out, the interest vested in the son on the death of the testator. If the son had not survived the father an alternative gift would have been effective and the estate would have vested in the heirs of the son and not in the son.
The court below recognized the force of Patterson v. Hawthorn
and the cases following it but relied on Scott's Estate,
The court below fell into a common error which is clearly pointed out in the interpretation of this principle by Chief Justice BROWN in Marshall's Estate,
As Edward H. Knerr was living at the date of the death of the testator the gift of one-half of the remainder of the income to him took effect immediately on testator's death. The enjoyment of the income was dependent only upon the earning and accumulation of a surplus income from that date. Even assuming for the sake of argument that there was no other gift than in a direction to pay or distribute in futuro, yet the gift or distribution was only postponed to let in the interest of testator's widow. Consequently, the vesting was not deferred. The enjoyment of the gift to Edward H. Knerr having been postponed to meet the burden created for the benefit of testator's widow, "and not chiefly on account of the character of the donee, it is regarded as a decisive circumstance in favor of immediate vesting": Marshall'sEstate, supra. The assignments of error must be sustained.
The decree of the court below is reversed and it is directed that a decree be entered consistent with this opinion, appellees to pay the costs of this appeal.