Wenrich's Estate

62 Pa. Super. 257 | Pa. Super. Ct. | 1916

Opinion by

Head, J.,

In the earlier paragraphs of his will the testator arranged for the conversion of all of his property, real and personal, into money. In the thirteenth paragraph he clearly declares the manner in which the fund was to be distributed and names each individual person who was to be a beneficiary in such distribution. They were his seven children, three daughters and four sons. The fund arising from the sale of all of his property he declares “shall be equally divided among my children and their heirs share and share alike, to wit, &c.” In the fourteenth paragraph he provides for the time and manner of the enjoyment by his daughters and each of them of the shares given to them. He proceeds to create for each share a sole and separate use trust to the end that the property given to his daughters could not be wasted or despoiled by an incompetent or thriftless husband. His intent that his children and each of them were to benefit by what he could bestow is further evidenced by the fact he provides — as to each daughter — if the income of her share should not be sufficient to maintain her properly, she could consume any portion of the principal necessary for that purpose. It was then his primary intent his property should go to and be enjoyed by his seven individual children.

Upon the death of any daughter, one of two possible situations would arise. She would die leaving children (issue) surviving her, or she would die without such issue. If she died leaving children, those children would clearly, under the will, take the unconsumed portion of the principal of her legacy. If she died childless or without issue, the following concluding clause of the fourteenth paragraph of the will became operative: “And in case if any one of my said children should die without any heirs of his or her blood, then in such case his or her share I deyise to be equally divided among my other children.” Was this a bequest to a class, the individual members of which were not in the contemplation of the testator and could not be ascertained until the death of one of his children? Or was it a bequest over to the surviving individual children whom he had just named in the previous paragraph of his will or their lineage? The learned judge of the Orphans’ Court answered the second question in the affirmative, and, notwithstanding the argument so earnestly advanced by the able counsel for the appellant, we are of the opinion the decree appealed from was correct. The court below relied, as the opinion indicates, on Patterson’s Est., 247 Pa. 529, which, as he declares, “is precisely the present case.” The learned counsel for appellant seeks to distinguish that case from the one at bar. Whatever significance might attach to the ground of distinction he advances, — if we had before us only the fourteenth paragraph of the will, — seems to be lost when the latter is read with the paragraph immediately preceding in which each one of his children is referred to nominatim.

The situation which arose under this will on the death of one of the daughters, leaving no issue to survive her, is fully stated in the following language cited with approval in the recent case of Packer’s Est. (No. 2), 246 Pa. 116: “The law leans in favor of vested rather than contingent estates, and will not suffer the inheritance to be in abeyance, if by any reasonable construction of the will, this can be avoided; where a future estate is limited to ascertained persons in being, subject to a prior gift to others unborn or unascertained who may never come into existence, the estate so given is regarded as vested subject to be divested.”

.We are of opinion the Orphans’ Court committed no error in making the decree appealed from.

Decree affirmed.