Milligan's Estate , 1914 Pa. LEXIS 736 ( 1914 )

Opinion by

Mb. Justice Bbown,

Clear as was the intention of Francis Milligan, the testator, who died in 1846, that the corpus of his estate should remain intact until the death of the last of his eight children, it is equally clear he intended that interests in that corpus should vest before the period which he fixed for distribution. His intention must prevail, and, as it is so manifest, the rule of construction that the law favors a vested rather than a contingent estate, has no place on this appeal. Upon the death of each child it was instantly known who would take that child’s “share,” as the testator termed it, in his estate when it was to be distributed upon the death of the last of his children. The share of each deceased child was directed by the testator to go to his or her “devisees,” or, if dying intestate, to his or her lineal heirs, or, if dying without such heirs, then to the legal heirs of the other children of the testator. When Charles W. Milligan died, in 1860, and gave his entire estate to his six sisters, each took a vested one forty-eighth interest in the corpus of the father’s estate, though the enjoyment of it by her legatees or next of kin was to be postponed until the time of distribution. Upon the death of Eliza J. Bobbins, in 1884, by the terms of her will, written in pursuance of authority given to her by her father, her one-eighth share in the principal of his estate passed at once to the children of her five surviving sisters, in the same way that the share of the son Charles W. had passed to the six sisters. Isabella M. Cross, the next of the daughters of the testator to die, was the grandmother of the appellant. She died intestate in 1895, leaving to survive her a son, appellant’s father, who died in 1905, and a daughter, Mary M. Cross Lotz, who died without issue in 1902, having left her entire estate to her husband. Upon the death of Mrs. Cross there passed, under the intestate laws, to her daughter Mary one-half of the interest which she had acquired in the corpus of her father’s estate under the will of her brother Charles; and there further passed, at the same time, to the daughter Mary a one-sixteenth interest in that corpus, for her grandfather had so directed in his will, if her mother should die intestate. What the daughter thus acquired, under the intestate laws and under the will of her aunt Eliza, passed under her will to her husband, and, on the' distribution of the fund in the hands of the trustee, the court below properly awarded to his executor what would have gone to her if living. Her interest in the principal of her grandfather’s estate was not contingent upon her living at the time of distribution, as learned counsel for appellant earnestly contend. Upon the death of her aunt Eliza and her mother she acquired absolute, substantive interests in her grandfather’s estate, to be paid to her in the future, and those interests must, under all the authorities, be regarded as having vested in her lifetime. She did not take under the mere direction of her grandfather that his estate should be divided upon the death of his last child, but acquired interests in it many years before the time fixed by him for distribution, and in the ways in which he declared she would acquire them. In Rosengarten v. Ashton, 228 Pa. 389, upon which counsel for appellant seem to place much reliance in support of their appeal, the situation was very different. The time for distribution was there fixed as the time when the interests vested because of the clearly indicated intention of the testator that a grandchild should take only if living at the time of the death of his last child. It is .needless to say more in vindication of the opinion of the learned adjudicating judge, approved by the court below on banc.

Appeal dismissed and decree affirmed at appellant’s costs.