Little's Appeal , 1876 Pa. LEXIS 137 ( 1876 )

Mr. Justice Paxson

delivered the opinion of the court,

We have no decided case in this state which distinctly rules the point in controversy. , It arises under the will of William Agnew, deceased, and briefly stated, it is thi’s: The testator gives the entire income from his estate, consisting wholly of personalty, during the life of his daughter Elizabeth, or while she shall remain single, to his two daughters, Mrs. Martha J. Little and the said Elizabeth, the former to receive one-third and the latter two-thirds of said income. Mrs. Little is now deceased, leaving a husband and children ; Elizabeth is still living and unmarried. The principal of the estate is not to be distributed until after Elizabeth marries or dies. In the meantime what is to become of the one-third of the income formerly paid to Mrs. Little ? It is claimed by the administrator of the latter. The court below disallowed this claim, and held, as to the income referred to, that William Agnew died intestate, and it would go to his next of kin.

It is to be observed that there is no gift over of this income uponi the death of Mrs. Little. Nor is it a gift for life; it is a gift per\ autre vie. It is true- it may not last for the life of Elizabeth, by\ reason of the- contingency of her possible marriage. It is, never-' theless a gift for the life of Elizabeth, subject to being determined by her marriage. Was the gift of this income to Mrs. Little an absolute bequest thereof, and so vested as to go to her legal representatives in case of her death prior to the marriage or death of Elizabeth ? We can discover no intent of the testator to die intestate as to this or any other portion of his estate, and no such intention is to be presumed. The distribution of the principal is expressly postponed until after the marriage or death of Elizabeth. The right to one-third of the income became vested in Mrs. Little immediately upon the death of Miss Agnew. Did the testator •intend that it should be for her life only, and in the event of her death go to his next of kin under the intestate laws? There is certainly nothing upon the face of the will from which such intent can be. gathered, and as we have before observed, no such can be presumed. In the same paragraph of the will in which the above recited provision occurs, the testator says: “If either of my children should die leaving children living at my death, then I desire and direct that the share of such deceased child shall be given to his or her child or children, as the case may b'e.” The testator is here speaking of the principal of his estate, and we cannot regard it as controlling the distribution of the income. Yet it is not without weight upon the question of intent. The testator has used no words in this will to show an intent to limit the gift of the income to Mrs. Little for her own life. In the absence of any such express purpose, we must look to the legal effect of the language he has employed.

In this state the use of the words heirs, executors, administrators or assigns, is not necessary to pass an absolute interest in a legacy by will. Had the gift of this income been to Mrs. Little, and to her executors, administrators and assigns, it would have been no stronger than it is with the omission of those words, in the absence of any bequest over. Had the gift been of a legacy fixed in amount, there could have been no question that it would have passed to her administrator upon her death. Is it any the less a legacy because it is payable by instalments of uncertain amount. Had it been for a fixed sum, as an annuity, there would seem to ’me but little doubt, under the English authorities, that it would go to her personal representatives upon her death : Rawlinson v. Montague, 2 Vernon 667; Lock v. Lock, Id; Savery v. Savery, 1 Ambler 140. Here the amount is not fixed, but it is capable of being reduced to certainty. It is a gift of one-third of the income. Said income arises wholly from investments in personal securities, producing a certain and regular return.

We are of opinion that the gift of this income was a vested interest during the lifetime of the testator’s daughter Elizabeth, or so long as she shall remain unmarried, and that upon the death of Mrs. Little, it passed to her legal representatives for the period above stated.

The decree of the Orphans’ Court is reversed, and record remitted for further proceedings.