| Pa. | Feb 21, 1884
delivered the opinion of the court, March 10, 1884.
After giving nearly all his estate to his wife and daughters, and appointing an executrix, the testator, in the last clause of his will, makes the following bequest: “I give to my sons, Isaac and James, $1,000 each, the interest to be paid them annually by my executrix, who is to be their trustee in this bequest.” James, the last named legatee, pre-deceased his father, who died January 16,1875, and Isaac died March 16, 1881, leaving a widow, Cornelia R. Sproul, the appellant, to whom letters of administration on his estate were granted by the register of Allegheny county.
The contention that prevailed in the court below was that the legacy to Isaac was merely an annuity of $60; and, upon his decease, the principal from which the annuity accrued passed under the residuary clause of the will to testator’s three daughters. On the other hand, it is contended that testator intended an absolute gift of the sum named, to be held by his executrix, in trust for the legatee, and the interest thereof to be paid to him annually.
We have no doubt the latter is the proper construction of his bequest. The words, “ I give to my sons, Isaac and James, $1,000 each,” clearly import nothing less than an absolute gift of that sum, If the additional words, “the interest to be paid them annually by my executrix, who is to be their trustee in this bequest,” had been omitted, there would have been literally nothing within the four corners of the will to suggest even a doubt as to the intention of testator, nor can it be fairly inferred from these words that he intended •to reduce the gift of $1,000 to a mere annuity of $60. On .the contrary, the}’ indicate nothing more than a purpose, on his part, to create a trust as to the corpus of the legacy for the benefit of the legatees. There is no bequest over of the principal on the death of either legatee, nor anything in the provisions of will limiting the time during which interest
The fact that the clause under consideration is preceded by a general residuary bequest in favor of the daughters cannot in the slightest degree militate against the construction we have adopted. As was said in Willard’s Estate, 18 P. F. Smith, 327-32, the “residue” of a man’s estate, in testamentary language, means whatever .is not specifically devised or bequeathed, and in whatever part of a will it may be found it ought to have that meaning, unless the whole will, taken together, clearly shows it was not so intended. If a testator should begin his will with a bequest or devise of all his residuary estate, and then proceed to make various bequests and devises, it would not vary the proper construction of either. The argument advanced by appellees, that because testator gave nearly the whole of his estate to his wife and daughters, it may be inferred he intended to give his son Isaac merely an annuity of $60, by way of remembrance, scarcely rises to the dignity of a petitio prineipii.
We see nothing to create a doubt as to testator’s intention to give Isaac an absolute legacy of $1,000; but if such doubt did exist it should be resolved in favor of the legatee. As was said by Mr. Justice Lowrie in Smith’s Appeal, 11 Harris, 9, “Incases of doubtful construction the law leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; of a primary rather than a secondary intent; of the first rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.”
It follows, from what has been said, that appellant is entitled to participate in the fund for distribution to the extent of $1,000, and interest thereon from the date to which the interest was paid to her intestate.
Decree reversed at costs of appellees, and record remitted with instructions to distribute the fund in conformity to the foregoing opinion.