Austin Keene's Appeal , 64 Pa. 268 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— In Keene’s Appeal, 10 P. F. Smith 504, a case arising upon the same will now before us, it was held that a person who has a mere possible interest so contingent and uncertain that it may never become -vested, is not entitled, under the Act of March 29th 1832, Pamph. L. 208, to process to compel an appearance in the Orphans’ Court. In consequence of this decision the Act of April 17th 1869, Pamph. L. 70, was no doubt passed. It provides, “ that the owner of any contingent interests in the personal property of any decedent, may legally require any executor or administrator thereof to make and exhibit, in the register’s office, his or her account of the trust in one year from the time of administration granted, and may require the legatee of any previous interest in the same property, before receiving the same, to give security in the Orphans’ Court having jurisdiction of the account of the executor or administrator of the decedent, in such sum and form as in the judgment of such court shall be sufficient to secure said contingent interest whenever the same may accrue or vest.” It is beyond all question that it was conw petent for the legislature to enact such a law even so as to reach existing cases: for it is only the extension of a remedy to existing rights, which has always been conceded to be within their constitutional power.

Is then, Austin Keene, the petitioner in the court below, the owner of a contingent interest in the personal property of the testatrix, Sarah Lukens Keene ? To answer this question it will not be necessary to examine at large the provisions of the will. If in any possible contingency Austin Keene will be entitled to an interest, he must be held to come within the comprehensive words as well as the clear intent and spirit of the Act of 1869.

It seems very plain and is hardly disputed that Mrs. Mitchell (Ellen Keene), both as to the legacy of $30,000 and the bequest of the residuary estate, takes under the will but .an interest for her life, with a limitation over to her children absolutely if she should have any. Should she leave no issue living at the time of her death — for that is the established construction of the words “if she dies without.issue” in bequests of personalty, 2 Jarman 362 — then the principal to go by way of alternative limitation to her brothers Henry and James. The language used in the residnary clause does not lead to a different result; for the gift is to her for life expressly, and the phrase “ devolve to her children, lawful issue, absolutely,” however it might be if there were no express life estate, cannot be considered to devolve in a course of succession so as to vest in her the absolute interest. The use of the word “absolutely,” as applied to her children, distinguishes it from the interest intended to be given to her. So the power of devising, “if she dies unmarried,” shows clearly that the testatrix did not intend that she should have an absolute interest.

Mrs. Mitchell having then only a life estate, it remains to inquire as to the provisions made in the event of her decease without leaving children or issue.

First: As to the legacy of $30,000. “If she dies without issue, the principal to go to her brothers, Henry and James, namely, the aforesaid investment of $30,000 in ground-rents, and bonds, and mortgages, the interest only for their uses ; but to their children lawful issue, absolutely.” It is unquestionably a well settled rule that, although the interest only of a fund be bequeathed, yet if the bequest be indefinite and without an ultimate limitation over, it will carry the principal absolutely. This construction is upon the same principle upon which it is held that a grant or devise of the profits of land will pass the land itself. The rule itself is accurately stated by Mr. Justice Kennedy in these words: “ Primá facie a gift of the produce of a fund is a gift of that produce in perpetuity; and it is consequently a gift of the fund itself, unless there is something upon the face of the will to show that such was not the intention:” Hellman v. Hellman, 4 Rawle 450; Campbell v. Gilbert, 6 Wharton 78. When however the testatrix declares, as she does here, that the interest shall be only for their (the brothers’) uses, but to their children, lawful issue, absolutely — does she not indicate in language which precludes all doubt as to the real intention, that the brothers were to take for life only ? Not only is the adversative particle “ but” very significant as meaning to express difference, but here again the word “absolutely” distinguishes plainly, as in the former clause of the same paragraph, the interest of the children from those of the father. If then there was a distinct gift to the children in remainder after the life estate, it matters not that James, the life-tenant, died before the testatrix. There would be no lapse. The children do not claim through or in virtue of the gift of their father. Their interest is distinct and independent, and the rule in regard to a lapse apart from the Act of May 6th 1844, sect. 3, Pamph. L. 565, has no application : 1 Jarman 293. It follows that Austin Keene, one of the children of James, is the owner of a contingent interest in the personal estate of Sarah Lukens Keene — by reason of his right to a share of the legacy of $30,000 if Mrs. Mitchell should die without children or issue.

The case, so far as his right to call for an account is concerned, might rest here. But he seems also to be contingently interested as -well in the legacy of $10,000 to Henry as also in the residuary bequest. If the fact that Henry is married prevents the limitation over, “if he dies unmarried,” from taking effect, yet as by express words “ the interest is only to be paid to him during his natural life,” it follows that the principal remains and forms part of the residuum. If however this construction should not prevail, then he has the same contingent interest if the limitation over takes effect: “ This sum to be divided between his two or one surviving brother and his sister, subject to the same investment and receiving the interest only of the same during their life term.” In either way then it must ultimately form a part of the residuum. Then as to this residuum: we have seen that Mrs. Mitchell has but a life interest: “if she dies unmarried she has power to devise it.” Whether under the facts this power exists or not, Austin Keene is the owner of a contingent interest in the estate of the decedent. If it exists Mrs. Mitchell may die without exercising it; in that event or if it does not exist, he will be entitled to a share under the intestate laws as one of the next of kin of the decedent — one of the children of her brother James.

Decree reversed, and ordered that the court below grant the prayer of the petitioner and award a citation as prayed, and that the record be remitted for further proceedings.