By her will testatrix directed as follows:
“I give, devise and bequeath unto The Philadelphia Trust, Safe Deposit and Insurance Company, Robert S. Smylie and A. Morris Herkness, their suc
The testatrix died in 1895, and from about 1883 the son, Matthew C., and his wife, Jennie, lived in the house in Bethlehem designated in the will until his death on April 25, 1893, before, it will be observed, the death of the testatrix, and thereafter his widow continued to live there until about 1913, and from that date until 1922 his widow rented the property and received the rents therefor. In the latter year this property, the one named in the will, was sold under a decree of the Orphans’ Court of Northampton County, and in August, 1922, under authority of this court, in accordance with the terms of the will, the proceeds were used to purchase No. 1831 Jefferson Avenue, Bethlehem, which property is in the possession of the widow of the son, and which she rents and receives the rental therefor.
The question raised by the exceptions is as to whether the widow is entitled to the rents of the property, she not living therein, and whether she is entitled to have the taxes paid from the residuary estate.
We can find nothing in the will requiring the son or his widow, as a condition precedent, to live in the house in order to receive the benefit under this trust. The devise is, “in trust for my said son, Matthew C. Smylie, during his life, so that he may use and occupy the same free of rent or charge. . . .” The trust is for Matthew, and at his death for his widow, and we can find no condition that they must live in the property. The next clause in the will remarks, probably parenthetically, “so that he may use and occupy the same free of rent or charge. . . .” He, or his widow, certainly use the property when they rent it, and we see no reason why they may not occupy the property by their duly authorized tenant. See Wusthoff v. Dracourt, 3 Watts, 240, and King’s Estate, 205 Pa. 416.
The other question raised by the exceptions is as to whether the widow of the son, Matthew C., is entitled to the benefit of the provision of the clause creating this trust for the payment of taxes by the residuary estate. This is not a question of an accruing share, but the clause rather provides for the substitution of the widow of the son, Matthew C., upon his death. We have an illustration of a substitution in Tayntor’s Estate, 1 D. & C. 791.
It appears from the codicil that the decedent had advanced money to three of her children, Ellen S. Herkness, Mary E. Dallett and Robert S. Smylie, for the purchase of homes, and directs that the money thus advanced should not be charged against them or their interest in her estate, “thus equalizing the provisions for homes made to my other children.” Having given outright to
The exceptions are dismissed and the adjudication is confirmed absolutely.
