276 Pa. 498 | Pa. | 1923
Opinion by
The controversy here involved arises out of the will of Alexander V. Murphey, who died October 12, 1895. He placed his residuary estate, real and personal, in trust to pay the income to his surviving children and the issue of those who predeceased him, — such issue in each instance to take between them the share their parent
The last of testator’s children died October 7, 1921, and the trust' terminated; thereupon the question arose, whether the “legal heirs” contemplated by testator were to be ascertained as of the date of his death or the date of the death of his last surviving child.
The auditing judge, being of opinion that the last-mentioned date controlled, refused to award any portion of the principal to the executors of Mary E. Stockton, a daughter of testator, who survived her father and died, without issue, in 1902. The orphans’ court sustained exceptions and directed that the residuary estate be distributed to the personal representatives of testator’s five children, all of whom were living at his death; from the final decree of the court below to this effect, the present appeals are brought.
The rule in Buzby’s Appeal, 61 Pa. 111, 114, 116, controls. There the testator devised real estate to a trustee for the use of his son William, for life, and after the latter’s decease, in trust for his children and the lawful issue of deceased children, and, for want of such child or children or lawful issue, then in trust for the use of his (testator’s) “right heirs” forever, and the question arose as to whether testator’s “right heirs” were the “persons who were his heirs at his death......or those who were his heirs at the death of his son William.” In holding the former class took the estate, we said it is a “well settled” rule of the construction that “a devise or bequest to heirs, or heirs at law, of a testator,......will be construed as referring to those who are such at the time of the testator’s decease unless a different intent is plainly manifested by the will.” This rule has been frequently followed since: see McFillin’s Est., 235 Pa. 175, 177; Tatham’s Est., 250 Pa. 269, 276; and Groninger’s Est., 268 Pa. 184, 188.
There is no difficulty in distinguishing the instant case from Leech’s Est., 274 Pa. 369, recently decided by us, and involving much the same question. In that case the testator created certain trusts and life estates, and finally directed that “after these trusts have been fully executed then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania.” It was held that distribution should be made to the heirs and next of kin of the testator ascertained at the time the trust terminated, in accordance with his
When the present will is read as a whole, we feel the probabilities are that testator had two paramount desires : he wanted his residuary estate kept in trust for his children till the death of the last of them; then he wished it divided, as his estate, according to the intestate law, — that is to say, as it would have been divided had he left no will; and this the rule adhered to by the court below accomplished.
The decree is affirmed at the cost of appellants.