153 A. 742 | Pa. | 1930
These two appeals by the only surviving son of John Clayton, deceased, raise the same question, were argued together, and will be decided in this one opinion. In the first, appellant contends that the orphans' court should have awarded to him one-half of the net residue of testator's personal estate, and not decreed that it should be held by the trustee, appellee, upon the trusts contained in the will. In the second, in a suit in equity for partition, he contends that, the common pleas should have decreed, that he, and not the trustee, was the owner of one-half of testator's residuary real estate. Both decrees are right.
By testator's will, his residuary estate was given to his executor, upon an active trust, to invest and reinvest it and to pay the net income in equal shares to his wife and appellant, "so long as they both shall live," with specified remainders over. The wife named in the will predeceased testator, whereby all the gifts to her failed. He remarried, but made no change in his will. As this wife survived him, she became entitled, under the intestate laws, to one-half of his residuary estate absolutely, the other half, in the absence of some controlling legal principle, of course being held in trust as provided in the will.
Eliminating all the provisions of the will in favor of the deceased wife, and all those which apply in case the son should predecease her (which he did not), what is left is that the residuary estate shall be held by the executor upon an active trust for the son for life, and upon her death "and also upon the death of my said son, who having married a woman of the Roman Catholic faith and leaving issue by a woman of the Romon Catholic *471 faith by marriage or otherwise, or my son having married a woman of the Protestant faith and leaving no issue," then to convert the residuary estate into money and to pay thereout certain sums to specified charities, and the balance to testator's brother, if living, and, if he should be dead leaving children, to divide the balance among such children.
Assuming, under our decisions in Beilstein v. Beilstein,
For the reasons stated, the orphans' court directed that, until the death of appellant, one-half of the fund to be distributed should be held by the executor, upon the active trusts set forth in the will, exactly as testator *472 directed it should be; for this reason the common pleas court held that one-half of the residuary real estate should be held upon those trusts until that time had arrived; and for the same reason we say
The decrees are affirmed and each appeal is dismissed at the cost of appellant.