103 Pa. 587 | Pa. | 1883
delivered the opinion of the court,
The second of the following two items of the. will of Dr. II. E. Muhlenberg, deceased, is that upon which the present controversy turns. “ All the rents, income and interest arising out of the balance of my estate, real, personal, and mixed, after first deducting annuities, repairs, taxes, and all other necessary expenses, 1 direct to be paid to my wifo, Ann E. Muhlenberg, semi-annually, by my executors, during her natural life, for the support and education and maintenance of my minor children.”
“After the death of my wife, Ann E. Muhlenberg, I direct my executors, or the survivor of them, to soil all my real estate, collect all outstanding moneys, and divide the amounts, by giving an equal share to each child or its heirs.” The widow died in 1881, and Charles P., one of the sons of the testator, died some ten years before his mother, unmarried and intestate. On distribution in the court below, the administrator of Charles P. Muhlenberg claimed the bequest as due to the estate of his decedent under the will above mentioned. This claim was resisted by the appellants, who insisted that the legacy -was in its character contingent, and so lapsed on the death of the legatee before the widow.
The Auditor, appointed by the Orphans’ Court to make distribution, after a careful investigation, and a very full and able opinion, awarded the controverted fund to the administrator, and in this he was affirmed by the court below, which decreed according to his recommendation. It is wearisome to be compelled to go over the stale and worn-out subject of vested and contingent remainders, and this especially when the auditor has left nothing for us to say which is novel even in form. The legacy was of personal property; the direction in the will to sell the realty worked a conversion. I do not understand this to be disputed. Indeed, no such dispute can arise, for if this were a devise of realty no one would doubt that the word heirs
In that ease, Mr. Justice Thompson, after calling attention to the fact that the contention was whether the words should be taken as substitutionary only, or as words of limitation, says : “The words in these cases specially adjudicated upon are identical with those that give rise to the doubt in the case in hand.” He then cites Chief Justice Tilghman’s question and answer, in Patterson v. Hawthorn, “ What did the testator mean by the words 4 or their heirs ? ’ I understand it as if he had said, to be paid to such persons as would be entitled to it as their representatives by the law of the country; that is to say, it was not-, in the ease of the death of one, to go to the survivors, but to be considered as vested in the deceased child.”
The learned justice then adds: 44 It is not correct to say that this was an obiter dictum on part of the Chief Justice. It was the very point in contest, and not whether the husband could have taken under the alternative bequest.” We have also the case of Mull v. Mull, 31 P. F. S. 393, in which it was held that the additional words, in a bequest, 44 or their legal heirs,” were evidently used, not to individuate grandchildren, but to supply a legal succession in the event of the death of any one of the legatees, and meant simply legal representatives.
Now, as there is nothing in Dr. Muhlenberg’s will which tends to qualify or limit the effect of the word “ heirs” following the bequest, even were the question otherwise doubtful,
Appeal dismissed and decree affirmed at the costs of the appellant.