261 Pa. 140 | Pa. | 1918
Opinion by
We have here two appeals, involving the same question/
John Maxwell died July 28, 1907, leaving a will by which he gave his residuary estate to trustees, to pay the income thereof to his wife, Elizabeth Maxwell, for life, and provided as follows: “And from and immediately after the death of my said wife, Elizabeth Maxwell, I order and direct my trustees hereinafter named, to keep and hold all my stock in the Wilton Hygiene Underwear Knitting Company, for and daring the lifetime of my children and the survivor of them and to pay out of the dividends realized therefrom, the sum of Six Hundred Dollars ($600.00) per annum to my daughter, Jessie May Maxwell, during her lifetime, and the balance of said dividends, if any, to divide equally among my other children, share and share alike, the issue of any deceased child to take its parent’s share. And upon the death of my said daughter, Jessie May Maxwell, I order my said trustees to divide the entire dividends realized from my said stock equally among my children share and share alike until the death of my last surviving child. Upon the death of my last surviving child, I order and direct my trustees or their successors to sell my stock in the Wilton Hygiene Underwear Knitting Company, and divide the proceeds equally among my grandchildren per stirpes.”
The testator left to survive him his widow and eight children and the child of a deceased son. The widow, Elizabeth Maxwell, died July 8,1908, leaving a will containing the following provision: “I give and bequeath all the stock that I own in the Wilton Hygiene Underwear Knitting Company to my executors and trustees hereinafter named, to keep and to hold for and during the lifetime ofimy children, and the survivor of them and to divide equally among my said children, share and
William G. Maxwell, one of the children of John and Elizabeth Maxwell, died May 15,1915, intestate, unmarried and without issue. Thereafter the trustees under both wills filed accounts. Upon the audits, the question arose as to what disposition should be made of the share of the income which had been payable to William G. Maxwell, during his life, and which had accrued after his death. The auditing judge held that W. G. Maxwell had a vested estate in a one-ninth share of the income, accruing between the death of his mother and that of the last survivor of his brothers and sisters, and awarded the income already accrued since his death to his administrator. Exceptions to the adjudication were dismissed by the court in banc, and the finding of the auditing judge sustained. On appeal, the Superior Court affirmed the decrees of the Orphans’ Court.
While there is no express gift over of any part of the income upon the death of one of testator’s children before the arrival of the time fixed for final distribution of the principal, the will shows clearly an intention that the entire income shall be paid to testator’s children and grandchildren, and to no' other persons. It is to be divided equally “among my said children, share and share alike, the issue of any deceased child to take its parent’s share.” This language is very similar to that of the will construed in Rowland’s Est., 141 Pa. 553, which was (p. 554) : “The surplus of net income..... .1 direct to be annually divided equally, per stirpes and not per capita, between my five children [naming them] and the issue of [naming them] deceased, and the issue of any other of said children that may at any time have died leaving issue.” In that case Mr. Justice Williams said
The latest case involving a similar question, is Huddy’s Est., 257 Pa. 528, affirming the decision of the Superior Court at 63 Pa. Superior Ct. 34. There the trustee was directed, after the death of the life tenant, “to pay the said income in equal shares to her children, as above set forth and to the children of any of her said children who may be deceased, such children to take their parents’ share, until the death of the last of my said nieces’ children.” It was held that the case was ruled by Rowland’s Estate. In the opinion of the Superior Court (pp. 38-40) the resemblance between the two cases is pointed out at length, and in this court it was said per curiam (p. 534): “The clearly expressed intention of the
In the present case, both the Orphans’ Court and the Superior Court followed the decision in Little’s App., 81 Pa. 190, where Mr. Justice Paxson said (p. 192) that the point in controversy, briefly stated, was this: “The testator gives the entire income from his estate, consisting wholly of personalty^ during the life of his daughter Elizabeth, or while she shall remain single, to his two daughters, Mrs. Martha J. Little, and the said Elizabeth, the former to receive one-third and the latter two-thirds of the said income. Mrs. Little is now deceased, leaving a husband and children; Elizabeth is still living and unmarried: The principal is not to be' distributed until after Elizabeth marries or dies. In the meantime what is to become of the one-third of the Income formerly paid to Mrs. Little?” It was held that it was p'ayable to the legal representatives of the deceased daughter, upon the ground that there was no gift over of the income on the death of Mrs. Little. We are clear, however, that the conclusion there reached, is not a rule of law properly to be applied to the case in hand. ^ This case is to be governed by the principle set forth in Rowland’s Estate, and as applied in Huddy’s Estate, supra. There is nothing in the wills now before us ■ which indicates an intention to make any distinction between the children. It clearly appears that the children who died leaving issue were to have but a life • estate. What is there in the wills to indicate that a child dying without issue, should have any greater or other interest in the income than a child dying and leaving issue? Nothing that we can find; and yet such would be the effect of the decision by the Orphans’ Court,
The assignments of error in each of these appeals are sustained, the decrees of the Superior Court are reversed, as are also those of the Orphans’ Court in each case; the costs of these appeals to be paid out of the respective funds for distribution. It is further ordered that the records be remitted for distribution in accordance with the view of the law as expressed in this opinion.