Estate of White , 135 Pa. 341 ( 1890 )

Opinion,

Me. Justice Mitchell :

The testator wrote, “ and the residue,.....if any, of the said one undivided seventh,.....given and devised, in trust, for my said daughter Ann M. Holmes, to grant, etc., to my children J. F., P. A., A. H., R. P., M. P., and E. C., and the children and grandchildren of my deceased daughter, M. N., equally, share and share alike, as tenants in common, and not as joint tenants, and the issue of any of my said, children who may then be dead,” etc. Whom did the words “said children” include? Appellant claims as one of the issue (grandson) of Ann M. Holmes, and his counsel has argued with great ingenuity that, as Ann Holmes was a child of the testator, and is mentioned in the. former part of the sentence, she must be.included among the “said children” whose issue were to inherit. If she had been mentioned generally as a child, or among his other children, or in connection with his enumeration of his intended beneficiaries, the argument would be unanswerable. But the manner and connection in which she is mentioned make such a construction impossible. Her name appears solely as a part of the description of the fund of which he is disposing, and not at all as part of the disposition itself, or among the beneficiaries. The residue of the fund therein-before left in trust for Ann is the subject matter of the devise, and he describes it accordingly as the fund “ given and devised in trust for my said daughter Ann.” But, if it had been described as “ the residue of the fund given and devised to the Safe Deposit Company in trust under the first part of this clause of my will,” it would have expressed the testator’s meaning with equal exactness, without mentioning Ann’s name at all, and, of course, without any possibility of a claim that her issue were included in the subsequent enumeration of the beneficiaries.

This consideration settles the fact that in naming his daughter Ann the testator was not writing or thinking of her at all as a beneficiary, but of the fund which he identified by reference to her. When he came to the distribution he specifically named the children whom he intended should receive it, and, when he desired to provide for the contingency of the death of any of them, his primary beneficiaries, he added the words, “issue of any of my said children who may then be dead.” In the connection and manner of their use it is entirely clear that the words “said children” referred to those he had named as distributees, and did not include Ann, whose name he used merely as part of the description of the fund to be distributed.

The learned court below were clearly right in their interpretation of testator’s language.

Decree affirmed.