237 Pa. 60 | Pa. | 1912
Opinion by
The testatrix, a widow, died 25th September, 1904, childless. Her last will was executed 9th December, 1903. By this will she placed the larger part of her estate in trust, and provided for certain annuities for life out of the income therefrom. To her mother, Mrs. Matilda Shippen, she gave an annuity of $1,500, in quarterly payments; to her sister, Mrs. Isabel Esser, an annuity of $1,200, in quarterly payments; to her niece, Mary S. Esser, an annuity of $2,500, in quarterly payments, to be increased to the sum of $10,000 in case she should marry. This further provision follows: “Subject to the foregoing annuities, any balance of income shall be divided between the children of Mary S. Esser, if any, and upon her death the principal of said estate, subject to the payment of the aforesaid annuities, shall be divided between the children of Mary S. Esser then living. If upon the death of Mary S. Esser there be no living children of the said Mary S. Esser, then the principal of said estate, subject to the annuities aforesaid, shall go to Keith Esser, and if he be dead the same shall be divided between the children then living of her brother Keith Esser, if there be any, and if there should be no children of Keith Esser then living, then the principal of the said estate shall be divided among the heirs at law of the said Mary S. Leisenring.” It is this provision which gives rise to the present controversy. When the will became operative the niece, Mary S. Esser, was eighteen years of age and unmarried. ■ Three years thereafter she married Truman M. Dodson, and as
We cannot adopt the view taken of this case in the court below. By a process of reasoning not warranted by settled rules of construction, the learned judge of the Orphans’ Court reached the conclusion that the testatrix did not intend an immediate gift of the surplus income to the children of Mary S. Esser, and from this conclusion he derives the inference that testatrix intended an accumulation of income for their benefit. Clearly there was no occasion here to look beyond the letter of the bequest to determine its character. That the gift was immediate admits of no dispute. Language could not have made it plainer. No prior estate or interest in the surplus income is created, and had child or children of Mary S. Esser been in existence at the death of testatrix such child or children would have at once taken. The fact that testatrix knew of their non existence when she wrote her will, is a matter Of no consequence so far as regards this particular inquiry. It is enough to know that the gift is not limited upon
Now, it is wholly immaterial to inquire whether the testatrix contemplated an accumulation of income between the period of her death and the birth of a child to Mary S. Esser. If the will is silent on the subject the law will supply such intention, and allow the accumulation within statutory period. Should the construction of the will carry the accumulation beyond the statutory period within which accumulations are permissible, the law will stop the accumulations at this point, and thenceforth give the income to the next of
We need only repeat that notwithstanding the object of the gift here was not in existence at the death of the testatrix, the gift was a perfectly valid and legal one; and that though the period of enjoyment was necessarily delayed to await the coming into existence of the beneficiary, yet, being a gift of a residuary fund, whatever intermediate accumulations accrued passed with the gift to the beneficiary. • Here the beneficiary came into existence within five years from the death of the testatrix, and there is therefore no excess in accumulation to be avoided. Other reasons might readily be given for excluding from all consideration in this case the statute against accumulations were it necessary. We have limited the discussion to the features urged upon our attention as supporting the decree entered. For the reasons stated the decree is reversed, and distribution of the fund is ordered to be made in accordance with the views here expressed.