202 Pa. 260 | Pa. | 1902
Opinion by
Ira Tripp died August 3, 1891. He left surviving him a widow, Rosanna Tripp, and two grandchildren, Walter S. and Catherine Tripp. The widow died April 29, 1899, and the grandson, Walter S., on June 17, 1901, leaving an only child, Rosene Eugenie Tripp, whose guardian is the appellant, the Lackawanna Trust and Safe Deposit Company. This appeal is from a decree of the court below, dismissing the petition of the guardian, which asks for a citation to compel the appellees, the surviving trustees under the will of the decedent, to settle their account as to the one half of said estate, alleged to be due to the ward, and that they pay over the said one half, with such accumulation of interest or income as has been received by them since the death of Walter S. Tripp. Whether the decree asked for should be made depends upon a proper interpretation of the following clauses in the will of the decedent:
“ Third. From and immediately after the decease of my wife, Rosanna Tripp, I direct said trustees to pay the income of my remaining property annually to my grandson, Walter S. Tripp, and my granddaughter, Catherine Tripp, or the survivor of them, for and during their natural lives, or such proportion thereof as my said executors and trustees shall see fit, and the amount or portion of my income so to be paid annually to my grandson and granddaughter shall be entirely discretionary with said trustees.
“ Fourth. I hereby vest in my said trustees full power and authority to manage my entire property hereinbefore bequeathed and devised to them in such manner as they shall deem best,
“ Fifth. From and immediately after the decease of my grandson, Walter S. Tripp, and my granddaughter, Catherine Tripp, if either or both of them shall die leaving a child or children, I direct my executors and trustees to-immediately turn over and convey one half of my remaining property, real, personal and mixed, to any child or children of my grandson, Walter S. Tripp, share and share alike, and one half part thereof to turn over, deliver and convey to any child or children of my granddaughter, Catherine Tripp, share and share alike, so that the said child or children of my said grandson and granddaughter shall have and enjoy all of my said estate then remaining in the hands of my trustees, as if I' had died intestate, and that the then living children of my grandson, Walter S. Tripp, or Catherine Tripp, my granddaughter, or either of them, had been my only heirs at law.”
If the third clause of the will stood alone, the right of the surviving grandchild to receive the whole of the income from
The evident intention of the testator being that, upon the death of one of his grandchildren, the survivor shall have only the income on one half of his estate, it seems to be equally clear how he disposes of the share that had been enjoyed by the deceased grandchild. He makes no provision as to what shall be done with the income from the one half that had been so enjoyed, and yet, under the interpretation of his will by the learned court below, justified by no word to be found in it, this income is to accumulate during the lifetime of Catherine Tripp — now about thirty-five years of age — and only upon her death is to be paid to Rosene Eugenie Tripp — now less than five years of age — and who then may be growing old. The
The intention of the testator, as we gather it from his will, being that, upon the death of either grandchild, one half of his estate then remaining in the hands of the trustees, with the accumulations thereon, shall be paid to the then living children of said deceased grandchild, the decree is reversed, and it is ordered, adjudged and decreed that an account be filed and settlement made with the appellant, as prayed for, the costs below and on this appeal to be paid by the trustees out of the accumulated income upon the whole of testator’s estate. This disposition of the case relieves us from a consideration of .the other question raised.