The exceptions present the question whether the learned auditing judge erred in interpreting testator’s will and codicils to exclude “Thomas H. Mirkil and his heirs” from participation in the principal of the trust before the court for distribution.
The learned auditing jpdge in his comprehensive and scholarly opinion has set forth the facts and the
The first provision for Thomas appears in the fourth item of the will, viz.: “Upon the death of my said son Charles ... if neither my said grandchildren shall attain the age of twenty-one years then the said Estate shall go to and vest in my brother, Thomas H. Mirkil, and his heirs absolutely. If both my said grandchildren shall die before reaching the age of twenty-one years and my son Charles be living, then the total income of my residuary Estate . . . shall be paid to him and after his death the principal from which such income was derived shall go to and vest in my brother Thomas H. Mirkil and his heirs absolutely.”
The gift of principal to Thomas in the quoted provision of the will was expressly conditioned upon the contingency that both grandchildren die before attaining 21 years of age. In fact, they both reached 21. Therefore, the specified contingency did not occur. Hence, this gift fails.
The second provision for Thomas appears in the first codicil, viz.: “Upon the death of my son Charles leaving to survive him either or both my grandson or granddaughter, H. Edgar Light and Anna Light, I direct that one third of my estate shall be granted and assigned unto my brother Thomas H. Mirkil and his heirs absolutely.” This contingency did not occur. In fact, both grandchildren predeceased Charles. Therefore, this gift fails.
There is no doubt that the express terms of the will and codicils produce this anomaly. Moreover, the precise factual situation which has occurred is not •expressly covered in the will or codicils, namely, both grandchildren'reached 21 years of age and thereafter predeceased Charles. However, although the draftsmanship of the will and codicils leaves much to be desired, the contingencies upon which Thomas or his heirs were to receive a share were clearly and unmistakably set forth in the quoted provisions of the will and first codicil. Neither contingency has occurred. This is the crucial point in determining ex-ceptants’ rights.
Where the provisions of a will are clear and unambiguous, there is no need to resort to rules of construction : Bender v. Bender, 226 Pa. 607. “. . . it is not the province of the court To consider what the testator possibly intended, but only what intention is expressed in the language used’: Joyce’s Est., 273 Pa. 404, 407, 117 A. 90; Biles v. Biles, 281 Pa. 565, 568, 127 A. 235”: Conner’s Estate, 346 Pa. 271, 273. Moreover, the law will not fill a gap where a testator chooses to itemize contingencies: Verner Estate, 358 Pa. 280.
Exceptants also urge that the gift to the grandchildren was contingent upon (1) their attaining 21 years of age, and (2) their survival of Charles. Exceptants rely upon the so-called “pay and divide” rule in support of their position that the gifts to the grandchildren were contingent. However, as we have heretofore said: “In view of the difficulties involved in the application of the 'pay and divide’ rule, we will not resort to it unless absolutely necessary”: Dickson Estate, no. 125, April term, 1919, decided November 7, 1958, 14 D. & C. 2d 741; Krug Estate, 86 D. & C. 436, 439. See Bald Estate, 385 Pa. 176, 183; and Newlin Estate, 367 Pa. 527, 536. Following this policy we find no need to resort to the “pay and divide” rule in this case.
After careful study of the will and codicils, and the able and comprehensive briefs filed in this case, we conclude that there was a gift by implication of a vested remainder to the grandchildren upon their attaining 21 years of age. This vested remainder was subject to divestment in part to Thomas and his heirs, only if either or both of the grandchildren survived Charles. This did not happen. Therefore, exceptants are not entitled to any portion of the fund.
Accordingly, the exceptions are dismissed and the adjudication is confirmed absolutely.
