Troxell's Estate , 1927 Pa. Super. LEXIS 117 ( 1926 )

Until the Act of June 29, 1923, P.L. 914, went into effect, (See Bonsall's Est., 288 Pa. 39), if real estate was devised to A. for life, with remainder to the testator's heirs, the heirs were determined by the intestate laws in force at the testator's death: Woods' Appeal, 18 Pa. 478. But if the devise was in trust for A. for life with remainder to the life tenant's heirs, they were necessarily determined by the law in force at the lifetenant's death. The Act of 1923 made no change in this respect. No one could tell who the heirs of Norman Troxell might be until his death in 1922 and they were fixed by the law in force then, not by the intestate laws of 1899 when his mother died. The testatrix and the person who wrote her will are presumed to have known this.

By the Intestate Act of June 7, 1917, P.L. 429, the status of a surviving spouse was materially changed. The widow's interest is no longer a dower or life estate, but the law now casts upon her an estate in fee simple in her deceased husband's lands and thus constitutes her one of his heirs. Norman Troxell's widow was, therefore, in my opinion, entitled to participate as an heir of her husband in the income distributable at his death to his heirs.

I can find in the will no purpose on the part of the testatrix to exclude her son's wife from participating in the income from the trust estate, if the law made her an heir; or any intention that it was to be distributed to her son's heirs according to the law as it existed when the will was written rather than at the time of his death. No one can be heir of the living. The corpus of the trust estate was not distributable until both of the life tenants were dead. The share of income of either life tenant dying before that time was to go to his or her heirs and legal representatives as they might be at the time of such life tenant's death. In my opinion this was the testatrix's only purpose and intent. I am confirmed in this view by the difference in the language used by the testatrix in disposing of the income at the death of one life tenant and of the corpus or estate in remainder at the death of both life tenants. In the former case the share of the income of the one so dying is given to his or her "heirs and legal representatives" until the termination of the trust; but on the death of both life tenants the estate in remainder goes to their "lineal descendants," showing a nice discrimination in the use of these terms.

In Wilson's Est., 225 P. 283, the California case cited in the majority opinion, the devise in remainder was to thetestator's heirs. I have found no case where the heirs of a lifetenant were attempted to be fixed by any other law than that in force at the life tenant's death.

I would reverse the decree and award the share of the income, which would have been paid to Norman Troxell, to his heirs according to the intestate law in force at his death, thus giving the appellant widow one-half.