Opinion by
Was the testator’s bequest of -the corpus of a trust fund of |6000. (after a life estate to his son) to his son’s issue who are living at the time of the son’s death, to be divided among said issue (income in the meantime to be paid to the son’s widow) at the time said issue arrive át. the.age.of 30 years, contingent or vested subject to .be divested? If-the gift was contingent then, as,a majority of the court below held, the bequest violated *529 the rule against perpetuities; if it was vested subject to be divested it was a valid gift and the testator’s 30 year old grandson, who is the appellant, is entitled to. the fund.
The rule against perpetuities was well and clearly established;
*
its application has often been difficult and perplexing. Before discussing the rule against perpetuities and its applicability to this will, it seems wise to search Newlin’s will to discover, if possible, the testator’s intent, because that of course is the pole star:
Mulert Estate,
The testator’s intent must be ascertained by a consideration of the
entire
will which of course must be read in the light of the circumstances surrounding bim when he made it:
Packer’s Estate (No. 1),
Testator, a lawyer, died December 23, 1922, having made a last will which was dated August 24, 1920. He left an estate of approximately |44,000. He was survived by a widow, who is still living, a son, who died September 15, 1934, and a grandson, the present appellant, who was born December 1, 1919 — 9 months before testator’s will and 3 years prior to his death. Testator di *530 rected Mg executors to convert all Ms estate into money •when they felt it was for the best interest of his estate, and when the , whole of his residuary estate had been converted into money, he gave a full equal one-half share to his wife; $6000. in trust; a $1500. legacy to his niece, Carolyn Newlin; and the remainder of his residuary estate to Jessie Pearce Eckler, her heirs and assigns forever.
The provision with respect to the aforesaid fund of $6000.' is as follows: “2nd . . . b. I give, devise and be-, queath unto my Executor, hereinafter named, or its successor, the sum of Six thousand ($6,000.00) Dollars in [a spendthrift] trust, to . . . pay over the interest or dividends received therefrom, . . . when and as the same may be gotten in, to my son, John Harrison Newlin, for . . . his natural life. . . . In case my son should leave a widow and issue * at the time of his death then the said interest or dividends of said trust fund are to be paid to said widow until said issue * arrive at the age of thirty (30) years at which time the corpus of said fund shall be divided among them, ** share and share alike. In case my son should die without leaving issue * living at the time of his death, and said issue * of my son should leave no issue, or if my son leaves issue living at the time of his death, if such issue * should die before arriving at the age of thirty (30) years without leaving issue, then said trust fund is to be held in trust ** by my Executor . . . and the interest or dividends, when and as received, paid over to my Brother, T. P. Newlin and on his death, if his wife Melinda Newlin survives him, to her, my Sisters^ Celia, A. Stephens and Lizzie V. Roberts, or the *531 survivors of them, share and share alike. Upon the death of my said Brother, his wife, Melinda Newlin, and my said Sisters the corpus of said fund shall be divided equally between my niece Carolyn Newlin, and. my nephew, Harold V. NewlAn, their heirs and assigns.”
Testator’s widow received a one-half share of his estate. It will be noted that his son was bequeathed only the income from the f6000. trust fund and unless this appeal is sustained, testator’s grandson will receive no part or share of his grandfather’s estate. The court below held that the bequest of the remainder was to the son’s surviving issue if and when they arrived at the age of thirty (30) years (which by possibilities was a period longer than a life in being and 21 years thereafter) and was therefore contingent and violated the rule against perpetuities.
What is the rule against perpetuities? “1. Perpetuities are grants of property, wherein the vesting of an estate or interest is unlawfully postponed: Saunders on Uses and Trusts 196; and they- are called perpetuities not because the grant, as written, would actually make them perpetual, but because they transgress the limits which the law has set in restraint of grants that tend to a perpetual suspense of the title, or of its vesting, . . .”:
City of Philadelphia v. Girard’s Heirs,
“. . . the rule against perpetuities prohibits the creation of future interests or estates Avhich
by possibility
***
may not become vested
within a life or lives in being at the death of the testator and twenty-one years thereafter, together Avith the period of gestation? See 21 R.C.L. 282; Hillyard v. Miller,
If a bequest is to a class who take at the death of a life tenant, the fact that the members of the class are unknown or even not in being at the death of the testator, or that their interest is subject to be increased or decreased or divested by subsequent events, will not render the gift contingent or violate the rule against perpetuities:
Edwards’ Estate,
“Where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children, . . . without regard to the question of whether or not a child survives the life tenant”:
Edwards’ Estate,
“The interest of the defendant, the issues in being of the class of which he is a member, may be decreased
*533
or enlarged by future issue or by the death of some of the living issue in the same class, but this does not make his estate a contingent one”:
Overbrook Heights Building & Loan Assn. v. Wilson,
“Where a. bequest is to a class, the vesting is not postponed because of uncertainty as to who, if any, may be the constituents of the class at the time fixed for the enjoyment of it. If there is a
present right
to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate”:
McCauley’s Estate,
An estate which is vested and payable to a grandson at 25, but is divested if the grandson die before attaining 25 years of age, does not violate the rule against perpetuities:
Bilyeu’s Estate,
Before applying these well settled principles,
“The proper procedure
is to determine the true construction of the will, just as if there was no such thing in existence as the rule [against perpetuities], and then to apply it' rigorously in complete disregard of the wishes and intention of the testator: 21 R.C.L. 294; Bender v. Bender,
We must first, therefore, determine the true construction of the will without any thought or consideration of the rule against perpetuities. If (and only if) the intention of the testator, gathered from the four corners of the will, is — as here — not clear, we can. resort .to pertinent rules of construction in
*534
order to aid in the ascertainment of the testator’s intent:
Weir’s Estate,
The first of these pertinent presumptions or rules of construction is that an heir is not to be disinherited except by clear and plain language or as it is often expressed, by plain or express words or by necessary implication:
Grothe’s Estate,
Moreover, if it is not clear from the language of the will whether the remainder is vested or contingent, then as Mr. Justice Linn said in
WeiFs Estate,
The majority of the court below, relied, mainly on
'Thompson 'Trust,
363"Pa. 85',"'69 A.'2d' 112/
Moore v.
*535
Smith,
In
Lloyd’s Estate,
In
Allen
Estate,
These cases illustrate how difficult, if not impossible, it is to harmonize or reconcile the myriad will cases which fall on one or the other side of the vested-contingent line, and especially is this so in the so-called “pay and divide” cases which create so many technical and perplexing problems.
While precedents in will eases are generally of little value, because few wills have a twin brother, we believe that
Middleton’s Estate,
In the light of these rules of construction we believe that the ambiguity in this will should be resolved (1) in favor of vesting, and (2) in favor of the heir. We construe this will to mean that the testator intended to give to those of his son’s children who were living at his son’s death a vested interest in the corpus of the $6000. trust fund; that this fund should be paid to them when they become 30 years old; that if they died prior thereto without leaving issue, the interest thereon should be paid to testator’s living . . . brother (and wife) and sisters and upon the survivor’s death, the corpus to “be divided equally between my niece Carolyn Newlin, and my nepheio, Harold Y. Newlin, their heirs and assigns”. We come more readily to this conclusion because it is equitable in this case to benefit the testator’s grandspn, and more particularly because testator’s gift over was hot to issue who might be living at some remote future date, but to living persons whom he knew and specifically named, thus indicating, we believe, an intent, independent of any rules of construction, to give his remainder to the children of his *538 son who were living at his son’s death and to postpone merely the time it became payable. Under this construction of the will, all authorities are agreed that there was no violation of the rulé against perpetuities.
Judgmént reversed; each party to pay his or her respective costs. •
Notes
The Act of April 24, 1947, §4, P. L. 100, 20 Purdon 301.4, page 474, changes the law in one respect by making actualities at the end of the period, rather than possibilities at the time of the creation of interest, govern.
Although we do not regard it as material, it may not be amiss to note that the testator sometimes used “issue” to mean, “children”.
Italics throughout, ours.
The numerous contingencies which are unprovided for are obvious.
Changed by the Act of April 24, 1947, supra.