Siegwarth's Estate, 33 Pa. Super. 622

Siegwarth's Estate

33 Pa. Super. 622 | Pa. Super. Ct. | 1907

Per Curiam,

We are of opinion that the questions raised by this appeal were correctly decided by the court below, and for the reasons given in the opinion filed by the learned judge. We will only add to the discussion' a few words as to the Act of July 9, 1897, P. L. 213. It is contended that in wills made since the enactment of that statute the words, “ die without issue,” must be construed to mean a want or failure of issue in the lifetime or at the death of the legatee, “ unless a contrary intention appear ” by the will in which the bequest is contained. According to this construction, the gift to Philip Siegwarth would be defeated by his death without issue whenever it might occur. Or, as the appellant’s counsel states the proposition, one of the conditions or contingencies annexed to the gift was that he should not die without issue. The act of 1897 is not specifically referred to in the opinion of the learned judge below, but we think he has made it quite clear that “ a contrary intention ” does appear in the will under construction. First, the gift to Philip is absolute in terms ; it is distinguishable, upon the principle enunciated in McClure’s Appeal, 72 Pa. 414, at bottom of p. 417, from the gift construed in Crawford’s Estate, 17 Pa. Superior Ct. 170. Second, the testatrix contemplated and directed payment of the principal to him at such time at or after the expiration of five years as, in the *626judgment of the executor, he should prove himself entirely competent and qualified to take proper care of the same. It would be contrary to the intention of the testatrix, plainly manifested in these provisions, to say that, although the gift was absolute in the first instance and the time of payment of the principal had arrived, it would be the rigbtor the duty of the executor to withhold payment, or to say that the gift would be defeated by the death of Philip without issue after that time and before payment was actually made. Whatever doubt there may be as to the intention of the testatrix in other particulars, it is very clear that she did not intend that. Plence, so far as we can see, the act of 1897 has no application, and the will is to be construed as if it had not been passed. Independently of that act, there may be room for debate whether the testatrix did not mean that if Philip should die without issue before the time for payment of the principal should arrive, his share should go to her other heirs. But she did not say so, and in arriving at her intention the general principles are to be kept in view, that the first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or, what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the contingency of death, or death without issue at any future period within the rule against perpetuities, without clear evidence of such an intent: Mickley’s Estate, 92 Pa. 514 ; also, that a bequest absolute in terms is to be regarded as vested rather than contingent, unless the language of other parts of the will indicates that the testator had a different intention. Hence, it is a general rule — which it is true must give way if “ the actual, personal, individual intent ” of the testator as manifested in the whole will requires otherwise — that if a bequest be made to a person absolute in- the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, it is to be construed to mean death, or death without issue, before the testator. There is nothing in the act of 1897 to prevent the recognition of these general principles in the construction of this will.

The decree is affirmed, the costs of this appeal to be paid by the appellant.