Opinion by
The question involved is whether the gift in remainder to testatrix’s next of kin refers to those who were such at the time of testatrix’s death or at the death of the life tenant.
Testatrix died March 1, 1923. By the fourth item of her will the residue of the estate was placed in trust *585 to pay the net income monthly to the daughter, Cora L. Harrison, for life, with right to consume the principal, for her support, and upon the daughter’s death to . . pay from the income of my Estate the sum of One Hundred Dollars monthly for the support of my grandson Jay W. Harrison during his natural life and if in the opinion of my Executor he is leading and living an upright life, he shall receive the full income of my Estate during the remainder of his lifetime, at his death the principal of my Estate so held in trust by my Executor or Trustee shall be divided equally among my next of kin under the Intestate laws of the State of Pennsylvania.”
Testatrix was a widow at her decease. Her only heir and next of kin was the daughter, Cora L. Harrison (the first life tenant who had power to consume). The daughter died intestate June 1, 1946, leaving to survive as her sole heir and next of kin a son, Jay W. Harrison, who was appointed administrator of his mother’s estate. Cora L. Harrison, the life tenant, had consumed principal to the extent that the income from the trust estate never amounted to $100 per month (the amount which the son Jay was initially entitled to receive upon the decease of his mother). Jay, the son, died October 20, 1949, testate, without issue, leaving a widow, Golda Harrison, who is the executrix and sole beneficiary under his will. Golda Harrison also is the administratrix d. b. n. of the estate of Cora L. Harrison. The next of kin of Alice G. Wilson as of the date of death of the grandson, Jay W. Harrison, the life tenant, are two nephews, a niece and a grandniece (appellees). Golda Harrison, administratrix d. b. n. (appellant) claims the entire estate upon the doctrine that her decedent, Cora L. Harrison, was sole next of kin at date of death of Alice G. Wilson, the testatrix, and is therefore entitled to the fund. Ap *586 pellees, upon the contrary, contend that under the terms of this will the next of kin are determinable upon the death of the life tenant and consequently they are the beneficiaries. The learned court below ruled in favor of appellees. This appeal followed.
Where, as in this case, the death occurred prior to the effective dates of the Acts of June 29, 1923, P. L. 914, 21 PS 11 and April 24, 1947, P. L. 100, 20 PS 301.14, the next of kin refers to those who were such at the tithe of testatrix’s death,
unless a different intent is plainly manifest.
This legal principle is firmly established. Most of the cases relating thereto are cited in
Thompson Trust,
We are in unanimous accord that we need not go beyond the will itself to determine this question. Upon the death of the life tenant the will directs that the . .
principal of my Estate . . . shall be divided equally among my next of kin under the Intestate laws of the State of Pennsylvania.”
(Italics supplied) Such a direction is a “pay and divide” provision and constitutes a
contingent,
and not a vested, remainder in the next of kin. The foundation for this legal principle may be found in
Moore v. Smith,
Decree affirmed. Costs to be paid from the corpus of tbe trust estate.