246 Pa. 116 | Pa. | 1914
Opinion of
As interpreted by this court, Asa Packer’s will created a trust to end twenty-one years after the death of the survivor of his three children, Robert, Mary and Harry, or sooner upon the decease of the last of these children with no descendant of any of them surviving [for a synopsis of the will, and our construction in this respect, see Packer’s Est. (No. 1) ]. The testator provided that whatever property might be in the hands of his trustees, not otherwise disposed of, on the termination of the trust, should be “paid over, transferred and delivered” to the descendants of these three children, and “in case there should be no one descendant of the said three children then living,” the property should be “divided into three parts”; and he directed, — “one thereof shall go to the children of my daughter Lucy E. Linderman and their issue, one thereof to my nephews and nieces herein-before mentioned, the remaining part shall go to the Le-high University and St. Luke’s Hospital.” The testator left surviving a widow, who died intestate November 17, 1882, and the three children, Robert, Harry and Mary, all of whom subsequently died without issue, thus bringing the trust to an end. His children were given the right to dispose by will of one-half of the portions of the estate respectively enjoyed by them during life (principal and income); and this they each did. The testator also left surviving three grandchildren, referred to by
Garrett B. Linderman, Jr., contends that the bequest to the “children of Lucy E. Linderman and their issue” was a contingent executory remainder which did not vest until the termination of the trust estate, and that then the whole interest vested in him as the sole survivor of a class. He also claims that the nephews and nieces mentioned in the will were provided for as a class, that, since they all died during the preceding life-estates,' their interest never vested, and upon their decease one-half of such interest passed to him. During the continuance of the life-estate in the testator’s three children, Garrett B. Linderman, Jr., transferred to his trustee in bankruptcy “all the right, title and interest, present and future, vested or contingent,” which he “now has, or may have, under and by virtue of the provisions of the last will and testament of Asa Packer, deceased”; the trustee in bankruptcy assigned this interest to the Girard Trust Co. who assigned it to Mary Packer Cummings, and she reassigned it to that company, upon certain trusts for Garrett B. Linderman, Jr., and others. Garrett B. Linderman, Jr., now contends that at the time of the original assignment he did not possess a transmissible or assignable interest in the estate passing under the will of Asa Packer. The court below decided each of these points against him, and he has appealed.
All the serious contentions at bar concern the proper disposition of that portion of the residuary estate of Asa Packer over which the three children named in his will were given no power of appointment. Judge Gummey, who presided at the audit, well summarizes this branch
Before undertaking a discussion of the appellant’s argument in detail we shall quote from the opinion of the Orphans’ Court in banc, disposing of the question of the validity of the assignment of the Garrett B. Linderman interest. The opinion states: “Garrett B. Linderman, Jr.,.......having survived the termination of the trust, would therefore be entitled in remainder to one-third of one-sixth of the residue, were it not for the assignment to the Girard Trust Company by his trustee in bankruptcy. The validity of this assignment was attacked on the ground that his interest......was not assignable or transmissible......(at the time of the original transfer or the subsequent assignment). The rule on this subject is aptly stated in a note in the Columbia Law Review, Vol. XIV, p. 66......‘The Bankruptcy Act provides that all property which the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process against him shall pass to his trustee in bankruptcy. The first description practically includes the second, so that transferability is the broad test of the trustee’s title; and this, in turn, cannot be reduced to any uniform rule since it depends upon the law of the jurisdiction in which the property is located.’ It is not necessary to go into the question as to whether his estate was vested or contingent;......as said by Chief Justice Gibson, in DeHaas v. Bunn, 2 Pa. 335, ‘It is entirely certain that such an interest (an executory limitation not vested in interest at the time of sale) may be transferred
In cases of this kind, properly to determine the nature of the estate or interest possessed by remaindermen, we must first discover the actual intent of the testator, and if the will makes that reasonably clear, it is not necessary to resort to technical rules of construction (Provenchere’s App., 67 Pa. 463; Mulliken v. Earnshaw, 209 Pa. 226; Denlinger’s Est., 170 Pa. 104, 106). Here, the testator’s thought appears to have been to treat his ultimate remaindermen as individuals, not as a class; but however that may be, the intent to give them a vested, or, at least a transmissible interest from the day of his death sufficiently appears; for even where a bequest following a prior limitation is to a class, strictly as such, unless an intent to the contrary is plain, the estate vests in interest, and the members of the class are to be ascertained as of the date of the death of the testator (Carstensen’s Est., 196 Pa. 325-326, 334; Chew’s App., 37 Pa. 23, 28; Landwehr’s Est., 147 Pa. 121, 123; McFillin’s App., 235 Pa. 175; Massey’s Est., 235 Pa. 289; also see
It is established that a legacy will be held contingent or vested as time is annexed to the gift or only to the payment of it, and that the interests of a primary and a secondary legatee may vest, quodam modo, at one and the same time; so that if the latter die before the occurrence of the event which entitles him equally to receive the legacy, it becomes payable to his personal representatives. In other words, where the contingency does not relate to the capacity of the secondary legatee, his interest vests at the death of the testator so as to be transmissible to his personal representatives (Kelso v. Dickey, 7 W. & S. 279; Hopkins v. Jones, 2 Pa. 69; Bassett v. Hawk, 118 Pa. 94-105); and the question whether or not a testator intended that the secondary legatee should survive the actual time of payment, in order to possess a vested or transmissible interest, is not to be judged by the mere form of expression employed in the language of the gift, but, in each case, is a matter of substance to be judged by the whole scheme of the will (McClure’s App., 72 Pa. 414, 418-19). In the present instance, when we read the will as a whole, it is clear thát time is not annexed to the substance of the legacies under consideration, but only to their payment. No conditions are connected with the capacity of the legatees to take; they were in existence at the date of the will and at the death of the testator, and the lapse of time which would necessarily intervene before they could come into the actual enjoyment of their legacies in no way or manner concerned, or was intended to affect, their capacity to take, should there be a failure of primary legatees, at the expiration of the trust.
Moreover, the present bequests are not merely to be
There are several minor matters, however, which call for notice. The Orphans’ Court in banc adopted the view that under the gift to “the children of my daughter Lucy E. Linderman and their issue/’ the word “issue” was to.be read. :as a word .of purchase referring to great
We have considered the appellant’s argument concerning the meaning of the word “residue,” as used in the 25th paragraph of the will, and keeping in view the general scheme of the testator, we see no merit in the contention that, in arriving at the residue of the estate over which his three children had power of appointment, the principal required to meet the annuities provided in the 24th paragraph should be excluded. Furthermore, we agree with the court below that, under the Act of June 4, 1879, P. L. 88, the will of Robert A. Packer shows a valid and sufficient exercise of the power of appointment vested in him. The 11th paragraph of the will, which broadly provides that the testator’s widow should have the right to take as much of his estate as she might desire, calls for no discussion; it is sufficient to say that
By dint of a long and well-stated argument and the citation of a host of cases, counsel for the appellant has succeeded in making his cause one requiring the expenditure of much time and thought on our part; but after studying the numerous cases to which we have been re: ferred, and some original research of our own, we are not convinced of any substantial error in the conclusion reached by the court below. It is impossible to reconcile all the decisions from the various jurisdictions touching upon the questions before us, or, in some instances, even our own, without unduly extending this opinion by pointing out shades of differences in the facts; which course we do not deem necessary to a proper disposition of the present appeal. None of the cases cited is on its facts exactly like the one at bar, or controlling here; and those referred to by us are merely inserted as shedding some light upon the various principles involved.
There is no specification of error setting forth in totidem verbis the final decree of the court below, and the assignments generally are not in proper form (Prenatt v. Messenger Printing Co., 241 Pa. 267); but we have endeavored to consider all the points called to our attention. The assignments are dismissed and the decree is affirmed; the costs to be paid by the appellant and others as ordered by the Orphans’ Court when the record is returned to it.