41 Pa. 512 | Pa. | 1862
The opinion of the court was delivered,
This case is not free from difficulty, but we think it was rightly decided. It is conceded that if a legacy be given to one by name, and in the event of his death to another, the alternative gift will take effect, if the first legatee die even in the testator’s lifetime. But it is argued that this rule is not applicable to legacies to a class, the constituents of which cannot be ascertained until the death of the testator, or some subsequent period. It is said that Samuel J. Neide, who died in the lifetime of his grandfather, was no legatee, and therefore that he had no share to go over to his mother in case of his death. It is true he never became a legatee in esse, but he was a possible one, and would have been entitled to a share if he had survived the testator, and obtained the age of twenty-one years. There is, undoubtedly, considerable reason for distinguishing between substitutionary legacies after an immediate gift to individuals nominatim, and such legacies after a gift to a class. But the cases seem to hold, that even when a legacy is given to a class, and, in the event of the death of one who would have been a constituent of the class, before a-defined period, his share over to another, that other will take though the first legatee die in the lifetime of the testator. In other words, the alternative gift will be supported, if the first legatee be one who would have taken had he lived to the period of distribution. Such is the doctrine of Cort v. Winder, 1 Collyer 321. There the bequest was to the testator’s first cousins germain, share and share alike, as a class. It was then added, “ and in case any of my said cousins shall depart this life before their respective share of the residue of my moneys and personal estate shall become due or payable, leaving any lawful issue him or them surviving, I direct that such issue shall have and be entitled to the same share or shares of the same residue and moneys as his, her, or their parent or parents would have been entitled to if living.” One of the cousins died after the date of the will, and before the testator, leaving issue. It was held’that the issue took what would have been the share of the deceased cousin, had he lived. It might indeed be said of this case, that the legacies to the first cousins germain vested in
The cases of Willing v. Baine, 3 Peere Williams 113, and Le Jeune v. Le Jeune, 2 Keene 701, as we understand them, are to the same effect. The legacies were to a class, and a bequest over in the event of the death of one who would have belonged to the class, had he lived until the time fixed for ascertaining its constituents, was held to take effect though the death happened before the testator’s decease. Upon this subject the authorities appear to be almost uniform. Indeed, but one is known to exist, and that is a very old one, which asserts the contrary doctrine. In Gray v. Garman, 2 Hare 268, the question was under a will bequeathing to brothers and sisters as a class, with a direction, that the issue of any of them that should be dead at the time of
Upon the whole, then, we think the decree of the court below was in harmony with the decided cases, and that the will of the testator will bear the construction which was put upon it.
The decree is affirmed.