No. 304 | Pa. | Feb 1, 1869
The opinion of the court was delivered,
by
John Reiff by his last will devised and bequeathed all the residue of his estate to his executors in trust for his widow for life, on her death to he converted into money, and the proceeds he gave to his seven children in equal shares “ to hold the same,” as to his sons “ to them respectively their heirs and assigns for ever.” In a subsequent clause he provides as follows: “ If any of my said above-named children shall-.die leaving issue, in such case, such issue shall take the share of his, her or their deceased parent, and in case any of my said above-named children shall die leaving no issue, then the share of him, her or them so dying shall be distributed among my surviving children, and the issue of such as may be deceased, such issue taking and equally among themselves dividing the share to which their deceased parent would have been entitled if living.” The widow having died, and the executors having a sum of’ money in their hands for distribution, Charles P. Reiff, one of the sons, presented his petition in the court below, praying the court to make an order on the executors to pay him one-seventh of the fund absolutely. The answer of one of the executors submits that the legacy of the petitioner is by the terms of the will subject to a contingency, and therefore declines to make such payment until security shall be given pursuant to the provision of the Act of Assembly “ relating to executors and administrators,” passed February 24th 1834, § 49 (Pamph. L. 83). The court below made the order as prayed for.
This case cannot be distinguished from Galland v. Leonard, 1 Swanst. 161. There a testator gave the residue of his personal estate to trustees in trust to place the same out at interest during the life of his wife, and pay her a certain annuity, and upon her death to pay and divide the said trust moneys unto and equally ■between his two daughters. In case-of the death of his daughters or either of them leaving a child or children living in trust for the children, and the testator declared that the children of each should be entitled to the same share his, her or their mother would have taken, if living. The Master of the Rolls, Sir Thomas Plumer, held that the testator intended only to substitute the children for the mother in the event of the decease of the latter during the widow’s life, and that the daughters who survived the widow became absolutely entitled. To the same effect are Da Costa v. Keir, 3 Russell 360, and Home v. Pillans, 2 My. & K. 15. These cases may be considered as establishing this general rule of construction that where there is a bequest of personalty in terms absolute in remainder after a life interest — with an alternative bequest in case
Decree affirmed, and appeal dismissed at the costs of the appellant.