Estate of Farnum , 191 Pa. 75 ( 1899 )

Opinion by

Mb. Justice Gbeen,

We think the learned auditor in the court below has correctly disposed of the question at issue in this case. By the terms of the codicil the provisions of the will were expressly modified and changed, so that out of the shares of the daughters as fixed by the will there should be paid to the daughters respectively on their arrival at the age of twenty-one years, the sum of $20,000 absolutely. The title of the daughters to these sums of $20,000 each, is derived directly from the codicil, and the source from which these sums are to be taken is the principal of the estate. The testator directs his executrix to divide all the residue of his estate into as many parts or shares as there may be children, or issue of a deceased child or children, living at the time of his death, and the share or shares respectively of any child or children so living at the time of his death he directs his executrix to grant, assign and pay over to the trustee, to invest the same and hold such share or shares in trust for such child or children severally and respectively. The words “ share ” and “ shares ” as thus used in the will must clearly import share or shares in the residue of the estate, and when the testator in the codicil uses the same words to indicate the source from which the §20,000 must be taken, it necessarily follows that it is out of the residue of the estate, which is the.principal in the hands of the trustee that these legacies must be paid. That being so, the remaining considerations are very simple. It is conceded that the provision for accumulations is void, and it is only necessary to refer to the statute to learn what becomes of them. The words of the act (April 18,1853) are, “ And the rents, issues, interests and profits so directed to be accumulated contrary to the provisions of this act shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.” Under our decisions in Washington’s Estate, 75 Pa. 102, McKee’s Appeal, 96 Pa. 277, Grimm’s Appeal, 109 Pa. 391, Rhode’s Est., 147 Pa. 227, and other kindred cases, the unlawful accumulations go to the minor absolutely upon attaining majority. The title to them is derived from the statute and.is therefore not vfithin the control of the testator. In this view of the subject it is clear that the whole amount of the unlawful accumulations belongs to the appellee, and must therefore be paid to her absolutely, and the §20,000 legacy, to her by force of the codicil, and that also must be paid to her directly. We think the question is quite free of difficulty, and that it needs no further discussion. . .

Decree affirmed and appeal dismissed at the cost of appellant.