156 A. 243 | Pa. | 1931
These two appeals are from dismissal of exceptions to an adjudication of the Orphans' Court of Philadelphia County. The will and six codicils of Francis W. Sharples, deceased, form an extended testamentary writing, of which we are here concerned with only two paragraphs, the first of which is altered by a codicil.
Francis W. Sharples, who died December 23, 1929, made bequests, among others, to two nephews and a niece, brothers and sister, under the provisions of the 21st paragraph of the will (as modified by a codicil), in which he divided his residuary estate into three parts. As to two of these parts, he deducted $25,000 from each and gave the two amounts so deducted to the Pennsylvania Company for Insurances on Lives and Granting Annuities of Philadelphia, in trust to pay the income *14 therefrom to his nephews Walter M. Sharples, Jr., and Paul W. Sharples, respectively, and "upon decease [of each], the principal to [the beneficiary's] children and issue of deceased children then living in equal shares per stirpes absolutely," and in default of children or issue of deceased children, then to each beneficiary's brothers and sisters or their children and issue of deceased children in equal shares per stirpes, absolutely; and the remainder of each one-third part, after setting aside the $25,000 trust, testator gave and devised absolutely to each of his nephews named. The whole of the remaining one-third of his residuary estate testator devised and bequeathed to the Pennsylvania Company for Insurances, etc., above named and Walter M. Sharples, Jr., in trust for his niece Florence S. Whitridge (formerly Lippincott, as her name appears in the will) for life with remainder at her decease to her then surviving child or children and the issue of any deceased child or children in equal shares per stirpes, and in default of such children or issue, in trust to grant, assign and transfer this trust estate to her brothers and sister or their children and issue of deceased children in equal shares per stirpes absolutely. By the 22d paragraph of the will, immediately following, testator provided: "In the event of the death of all the said children of my brother Walter M. Sharples, viz.: Walter M. Sharples, Jr., Helen May Sharples Andrews, Paul W. Sharples and Florence S. Lippincott, without leaving any children or issue to survive them then I give and bequeath the sum of ten thousand dollars to each of the following institutions, viz.: Children's Hospital, Children's Aid Society and the Society for the Prevention of Cruelty to Children all located in the City of Philadelphia."
Helen Andrews, dying without issue, predeceased testator and a gift to her contained in the original will was eliminated by the first codicil. At the time of testator's death, Walter, Jr., Paul and Florence were living as was also a child of Paul. The orphans' court distributed *15 the estate giving effect to all present interests defined in paragraph 21, but postponed without prejudice the determination of the charitable institutions' future rights, on the theory that distribution and final settlement could not be made thereunder until the deaths of Walter, Jr., Paul and Florence.
Appellants contend for an interpretation of the 22d paragraph at the present time. They argue that the 22d paragraph should be considered independently of the 21st and be interpreted to mean that the contingency upon which the gifts to charities arise is the death of Paul, Walter and Florence without issue before the death of testator, and that inasmuch as the 22d paragraph is independent of the life estates in the 21st paragraph, the rule enunciated by this court in Mickley's Appeal,
We see no merit in the contention that under the doctrine in the above cited cases, the gift over in the event of death of the two brothers and sister "without leaving any children or issue to survive them," must be construed as referring to death of devisees without issue in the lifetime of testator, since this is a rule of construction to carry out the presumed intention of a testator, and it is obvious from the wording of paragraph 22 that testator had no such intention. It would appear that paragraph 22 is a continuation of the testamentary thought in paragraph 21 and was added to provide for the contingency of the nephews and niece dying, after the death of testator, without issue.
Appellants suggest that no specific fund is provided for payment of the $30,000 gift to charity, and contend that as the principal of the two $25,000 trust funds of Walter, Jr., and Paul, — upon either dying as the last survivor of the three and their issue, — would be insufficient to discharge in full the gifts to charity, the principal *16 of the trust fund provided for Florence, which admittedly exceeds $30,000, would, at her death as the last survivor of the two brothers and sister and their issue, provide the only source out of which the charitable gifts mentioned in the 22d paragraph could be paid. This contention admits the possibility of participation, at a future time, by the charities, in testator's estate, and brings us to the question now up for decision.
In Douglas's Estate,
Decree of the court below is affirmed; costs to be paid out of the estate.