49 Pa. Super. 314 | Pa. Super. Ct. | 1912
Opinion by
The controversy in this case arises over the distribution of the income of a trust created by the testatrix in her last will and testament as follows: “The two remaining store buildings immediately below the above described premises Nos. 623 and 625 respectively, together with the three brick houses in the rear of the above fronting on Court street, with their several appurtenances, are to be held in trust by my hereinafter named executors, they to collect the rents, &c., and after paying taxes and insurance and necessary repairs, divide the net proceeds annually among all my children, share and share alike, to wit: Lizzie, intermarried with Henry D. Van Horn, Mary M., Henry
Robert W. Spang, a son of the testatrix, died, testate, January 2, 1910; his wife, mentioned in the will, predeceased him; after her death, he remarried, and at his death left to survive him a widow and a son; and by his last will he appointed Cordelia D. Spang, his widow, executrix.
The learned judge of the orphans’ court first distributed to said executrix an equal one-sixth of the income from said trust estate which accrued from January 2, 1910, to July 1, 1910. This on the theory that Robert W. Spang and each of the other children took a vested interest in the net annual income of the trust estate, not only for life, but during the whole period of the trust; which under another portion of the will is to continue until the death of the last surviving daughter of the testatrix. If Robert W. Spang took a vested interest in the net annual income of the trust estate, for the whole period of the trust, the distribution to his personal representative was correct and this is conceded on all hands. To this distribution, however, exceptions were filed, to wit: (1) “The court erred in distributing to Cordelia D. Spang, executrix of Robert W. Spang, deceased, the sum of $157.00.” (2) “The court erred in not distributing the balance due the estate equally between Isaac Y. Spang, committee of Emma A. Holton, lunatic, Elizabeth Van Horn, Sallie Spang, and Isaac W. Spang.” The persons named in this second exception were, according to the findings of fact by the learned judge below, entitled to the money being distributed, if Robert W. Spang’s interest therein was contingent. The learned judge sustained the exceptions and refused to distribute to the legal representative of Robert W. Spang the sum claimed as vested in him, by his executrix.
From the learned judge’s opinion in support of his decree we quote the following: “As to the rents received by the trustees, the testatrix directed that they should be divided annually among all her children. She seems to
In our opinion, the interest of Robert W. Spang, in the income of the trust estate, was vested and at his death it passed to his legal representative till the death of the last surviving daughter of the testatrix. A careful examination of the will does not indicate to us that the income of the trust estate was contingent.
We think the question here raised does not materially differ from Little’s App., 81 Pa. 190. In that case the court below took the view that the income in question was contingent and refused to distribute it to the personal representative of Mrs. Little who was then deceased. But in an interesting opinion by Mr. Justice Paxson it was held that the income was vested at the death of the testator and that the court below erred in awarding the income to the next of kin of the deceased, and held as follows: “We are of the opinion that the gift of the income was a vested interest during the lifetime of the testator’s daughter Elizabeth, or so long as she shall remain unmarried, and that upon the death of Mrs. Little it passed to her legal representative for the period above stated.”
In McClure’s App., 72 Pa. 414, the question of vested
In Little’s App., 117 Pa. 14, we find the question of vested and contingent interests ably discussed by Mr. Justice Green. In King v. King, 1 W. & S. 205, Gibson, C. J., said: “Where the enjoyment of an entire fund is given in fractional parts, at successive periods which must eventually arrive, the distinction betwixt time annexed to payment and time annexed to the gift, becomes unimportant. In such a case, it is well settled that all the interests vest together.” In the case of Patterson v. Hawthorn, 12 S. & R. 112, it was held that a bequest in the following words: “At the decease of my wife, I do allow the price of my land shall be equally divided among my two sons, A and B, and my daughters, C, D, E and F, or their heirs, in six equal parts,” gave vested legacies to the first takers and one of them having died before her mother her share was given to her husband as her
It may be contended that the use of the term “heirs” in the above quotations controls the question of the vesting of the legacies, but Mr. Justice Green further along in the opinion in Little’s App., 117 Pa. 14, explicitly says that: “The direction to pay to Dr. McComb during his lifetime and to his heirs after his death is the appropriate form of expression for transferring and delivering the gift, and we do not think it has any significance as affecting the legal character of the gift.” But this question is expressly decided in Little’s App., 81 Pa. 190, where Mr. Justice Paxson says: “In this state the use of the words heirs, executors, administrators or assigns, is not necessary to pass an absolute interest in a legacy by will. Had the gift of this income been to Mrs. Little and to her executors, administrators and assigns, it would have been no stronger than it is with the omission of those words in the absence of any bequest over.” The latter case is cited and recognized in Lemon v. Graham, 131 Pa. 447-453, also cited and recognized in Ritter’s Est., 190 Pa. 102-105. A number of authorities on the question of vested gifts will be found in Long’s Est., 39 Pa. Superior Ct. 323, and that decision was affirmed by the Supreme Court in 228 Pa. 594.
The assignments of error are sustained and the decree of the orphans’ court is reversed and the record remitted for distribution on the theory that Robert W. Spang took a vested interest in the income of the trust estate under the will of his mother.