Muhlenberg's Appeal , 1883 Pa. LEXIS 215 ( 1883 )

Mr. Justice Gokdost

delivered the opinion of the court,

The second of the following two items of the. will of Dr. II. E. Muhlenberg, deceased, is that upon which the present controversy turns. “ All the rents, income and interest arising out of the balance of my estate, real, personal, and mixed, after first deducting annuities, repairs, taxes, and all other necessary expenses, 1 direct to be paid to my wifo, Ann E. Muhlenberg, semi-annually, by my executors, during her natural life, for the support and education and maintenance of my minor children.”

“After the death of my wife, Ann E. Muhlenberg, I direct my executors, or the survivor of them, to soil all my real estate, collect all outstanding moneys, and divide the amounts, by giving an equal share to each child or its heirs.” The widow died in 1881, and Charles P., one of the sons of the testator, died some ten years before his mother, unmarried and intestate. On distribution in the court below, the administrator of Charles P. Muhlenberg claimed the bequest as due to the estate of his decedent under the will above mentioned. This claim was resisted by the appellants, who insisted that the legacy -was in its character contingent, and so lapsed on the death of the legatee before the widow.

The Auditor, appointed by the Orphans’ Court to make distribution, after a careful investigation, and a very full and able opinion, awarded the controverted fund to the administrator, and in this he was affirmed by the court below, which decreed according to his recommendation. It is wearisome to be compelled to go over the stale and worn-out subject of vested and contingent remainders, and this especially when the auditor has left nothing for us to say which is novel even in form. The legacy was of personal property; the direction in the will to sell the realty worked a conversion. I do not understand this to be disputed. Indeed, no such dispute can arise, for if this were a devise of realty no one would doubt that the word heirs operated as a limitation, and there would be no question as to the character of the gift. But notwithstanding the very learned argument of the counsel for the appellants, we cannot see that the question is more difficult of solution because the gift is of personalty. The will makes a final disposition of the estate or fund, and it is fractional only as to its enjoyment; the widow to. have and enjoy the. interest for life, and the corpus to be distributed among the children, share and share alike, at her death. If these legacies were not vested we fail to see upon what contingency they were made to depend. The will indicates no contingency of survivorship at the death of Mrs. Muhlenberg ; on the other hand, it directs, without qualification, that at that period the estate shall be divided among the children. There is here no time or other condition annexed to the substance of the gift, but merely to the.time of enjoyment. Hence, on all authority, the legacy must be treated as vested : McClure’s Ap., 22 P. F. S. 414. Provenchere’s Ap., 17 P. F. S, 463, may be regarded as a case in point, and its facts certainly do not more strongly support the principle there decided than do those in the case in hand. Provenchere made a devise in trust to convert real and personal property into money, and to invest, inter alia, for the use of his daugliter-in-law, Maria Rutgers, during her widowhood, and after her marriage-or decease, over to his grandchildren ; the income to be applied to their maintenance and education, and the capital to be paid to them as they respectively attained the age of twenty-one years. The auditor to whom the case was referred for disposition, held that the interests of the grandchildren were contingent and did not vest until the death of the widow, hence, those- only who survived her were entitled to take. But in this he was not sustained either by the court below or by this court. The argument for the appellant was, that as there was no beneficial, enjoyment of the fund given to the remainder-men, during the life of the first taker, there was no intention indicated that the legacy should vest before the time fixed for the beneficial enjoyment- of the fund. It will be seen that there is here a concession that the principal sum vests immediately on the death of Mrs. Rutgers, though its payment is deferred until the beneficiaries reach the age of twenty-one, and this because of the bequest of. the interest or income for their use in the meantime. But Mr. Justice Shabswood, who delivered the opinion of the court, pertinently asks, how it came that, the bequest of the very same interest to Mi’s. Rutgers for life could prevent the vesting of the fund at the death of the testator. In whom did the fund vest, if not in the grandchildren ? And the mere fact that the payment of the principal and. income was put off until the widow’s death did not make- the gift contingent. In the case in hand, as already observed, the testator appropriates the whole income of his estate to his wife for life, and on her death he empowers his executors to sell his real estate, collect all outstanding moneys, “ and divide the amount by giving an equal share to each child or its heirs.” • After a direction so plain as thiSj how can there be any doubt that the testator not only intended to dispose, but did dispose of his whole estate; or that at the time of his death his estate should go to his children, their enjoyment thereof being postponed only because there intervened the necessity of providing for the comfort and support of his wife during her life? But then again, we have it well established in Pennsylvania, by an unbroken line of decisions, that the word “heirs,” when uncontrolled by the expressed intention of the will, has the effect to vest a legacy which w'ould otherwise be contingent. In other words, it is to be taken as a word of limitation, limiting- the bequest, in case of the death of the legatee before the time fixed for payment, to his or her representatives. The question is fully discussed, in McGill’s Ap., 11 P. F. S. 46, and the cases of Patterson v. Hawthorn, 12 S. & R. 112; King v. King, 1 W. & S. 205; Reed v. Buckley, 5 Id. 517; Buckley v. Reed, 3 Har. 83, and Manderson v. Lukins, 11 Id. 31, were followed and approved.

In that ease, Mr. Justice Thompson, after calling attention to the fact that the contention was whether the words should be taken as substitutionary only, or as words of limitation, says : “The words in these cases specially adjudicated upon are identical with those that give rise to the doubt in the case in hand.” He then cites Chief Justice Tilghman’s question and answer, in Patterson v. Hawthorn, “ What did the testator mean by the words 4 or their heirs ? ’ I understand it as if he had said, to be paid to such persons as would be entitled to it as their representatives by the law of the country; that is to say, it was not-, in the ease of the death of one, to go to the survivors, but to be considered as vested in the deceased child.”

The learned justice then adds: 44 It is not correct to say that this was an obiter dictum on part of the Chief Justice. It was the very point in contest, and not whether the husband could have taken under the alternative bequest.” We have also the case of Mull v. Mull, 31 P. F. S. 393, in which it was held that the additional words, in a bequest, 44 or their legal heirs,” were evidently used, not to individuate grandchildren, but to supply a legal succession in the event of the death of any one of the legatees, and meant simply legal representatives.

Now, as there is nothing in Dr. Muhlenberg’s will which tends to qualify or limit the effect of the word “ heirs” following the bequest, even were the question otherwise doubtful, this would, under the authorities cited, determine the character of the legacies, and settle the contention in favor of the appellees.

Appeal dismissed and decree affirmed at the costs of the appellant.