65 Pa. Super. 396 | Pa. Super. Ct. | 1917
Opinion by
Morris Wyllner died testate, on November 15, 1907, leaving a widow, Mary G. Wyllner, by whom he left no children. He left children as follows: William Wyllner and Jnlia Hall Wyllner (now Jnlia Hall Renner), by a first wife, and Morris A. Wyllner by a second wife. He appointed as executors of his will Sylvanus A. Leith and his son, Morris A. Wyllner, who duly qualified as such. The personal property of the estate was accounted for and distributed under the first account of the executors. Morris A. Wyllner died on December 16, 1914, and this account was subsequently filed by the surviving executor and trustee. The fund for distribution consists ’ in part- of the income of real estate, the remainder being the proceeds of real estate sold. The provisions of the will which are material to the consideration of the questions raised by this appeal are as follows: “All the rest, residue and remainder of my real estate......I give and devise unto my executors hereinafter named in trust to invest and keep the same invested and to collect the income therefrom and after paying all repairs, taxes and other necessary charges I direct that they shall pay one-third of the net income derived from my real estate to my wife, Mary G. Wyllner, in quarterly payments or oftener as máy be most convenient during the term of her natural life and the remaining two-thirds of said net income derived from my real estate, I direct shall be paid in equal shares to my daughter, Julia Hall, and my son, Morris Albert Wyllner, during the lifetime of my said wife. If either of them should die during the lifetime of my said wife, I dire.ct that the said income to which said decedent is entitled shall be paid to his or her issue and should either of them die during the lifetime of my said wife, without leaving issue, then I direct that said income shall be paid to the survivor or the issue of such survivor should the survivor also die during the lifetime of my said wife. Upon the death of my said wife, I give and devise the
When a widow declines to accept the provision for her contained in the will of her deceased husband, she takes the interest in his entire estate to which she is entitled under the intestate laws, as to her there is no will. The remainder of the estate will then pass under the will as if the widow were dead. Any estate in the property to which she might have been entitled under the will ceases
It is argued in the present case that this rule does not apply for the following reasons, viz: (1) That the trust created by the will was not for the benefit of the widow alone, that she was to receive only one-third of the income of the trust estate during her life and that the two children, Julia and Morris A., were each to receive one-third of said income, with remainders (of income) to their respective issues and cross remainders in the event of either dying without issue, and (2) That the devises in remainder to Julia and Morris A., respectively, were contingent upon their- surviving the widow, then over to the issue of each, respectively, and with cross remainders in the case of the death of either without issue. The determination of the question whether it was the intention of this testator that the trust which he created by his will was to continue until the actual death of his widow, or only so long as she continued to have an interest in that trust estate, is not dependent upon whether the widow was to receive the entire income of the trust estate or only a part of it. The fact that the widow was to receive only one-third of the income is not controlling. The testator gave to his widow “one-third of the net income derived from his real estate” during the term of her natural life, that is, not the income of one-third but one-third of the income of the whole. To ascertain and
“Such was undoubtedly the testator’s intention, and he provided for it by a trust, but outside of this provision for his widow the whole beneficial enjoyment of his estate is given immediately to his children; the ‘use of the remaining two-thirds’ is to be divided among them, or. their heirs, during the lifetime of the widow,......and on the death of the widow the property is to be equally divided ámong them”: Woodburn’s Est, 151 Pa. 586. The will in that case, as in this, directed that the widow should receive one-third of the income during her life, and the remaining two-thirds of the income was directed, to be equally divided between the five children “or their lawful heirs,” during the lifetime of the widow, and, at the death of the widow, the property was to be equally divided between the five children “or their lawful heirs.” It was there held that when the entire beneficial interest, in the property is given but possession is postponed, courts of equity will look to the purpose of the postponement. That, as no persons, other than the widow and children, were given any present or future interest in the property and that as the trust, created by the will, was to determine immediately upon the death of the widow, without regard to any other event whatever, it must be held that the only purpose of the testator in directing that the property be kept together was to secure the one-third of the income to the widow during her life, and, therefore, that purpose having failed, or been superseded by the widow’s election to take against the will, the trust established only to serve that purpose became useless, and ended. Mr. Justice Mitchell, who spoke for the Supreme Court in that case, said: “Here the remainders are vested, and the direction to pay to the lawful heirs is only in succession to deceased children, and inserted to prevent the implication of a lapse in case of death during the continuance of the life estate.” That case establishes the principle that where under the terms of the
The other ground upon which it is contended that the trust created by this will should be continued and the vesting of the remainders postponed, notwithstanding the election of the widow to decline to accept the estate thereby created, is that the right of survivorship, as between the children, Julia and Morris A., Avas an element of value which the testator must be held to have contemplated, and is a compelling reason for sustaining the trust and preventing the acceleration of the vesting of the estates in remainder. This same question arose under a will which created a trust estate of which the widow of the testator was to receive the income during her life, after her death the property was to be sold and the proceeds divided into ten equal shares, one of these shares was bequeathed to each of several persons named, “or his lawful issue” ;■ as to one of these shares the Avill provided that in case he died without issue such share should be paid to his brothers and sisters; and then followed this general provision, viz: “Provided, at all times, that in case any of the above named legatees should die before their legacy becomes payable, without lawful issue, where no other provision is made, in such case the share so bequeathed shall be divided in equal shares to and amongst those who are then living and named as legatees in this will.” Now it matters not whether it be held that these legacies were contingent, or vested subject to be defeated by the death of the legatee before the period
This rule is not without its exceptions and it is not to be applied in a casé where the acceleration of the remainders would defeat the right of some other beneficiary under the testator’s will. When a widow declines to accept the provisions in her favor contained in her husband’s will, the property which the testator intended for her benefit may, in some cases, be sequestrated to compensate devisees or legatees who are by her renunciation disappointed, or would otherwise be deprived of benefits which the testator intended for them: Gallagher’s Est., 76 Pa. 296; Heineman’s App., 92 Pa. 95. When the will provides a trust fund only a part of the income of which is to be paid to the widow during life and the balance of that income, during the life of the widow, is to be paid to another person, and the estate in remainder is devised to still another person, the election of the widow to take against the will cannot defeat the express intention of the testator that another than the widow (and not the remainderman) shall take the income of a part of the trust fund during the actual lifetime of the widow: Young’s App., 108 Pa. 17. The logical result of the decision in the case last cited was reached in Portuondo’s Est., 185 Pa. 472. In the case last mentioned the will created a trust for the benefit of the testator’s widow and his mother, the former to receive two-thirds of the income and the latter one-third of the income, of the whole residuary estate. The widow elected, to take against the will. Upon the death of the widow, under the terms of the will, the whole principal of the estate was to be divided into three equal parts, of which he gave one to his stepdaughter, one to his stepson, and the remaining third to his mother. The fund
The decree of the court below is reversed and the record is remitted with direction to make distribution in accordance with the finding of the adjudicating judge.