Scull's Estate , 249 Pa. 52 ( 1915 )

Opinion by

Mr. Justice Potter,

The testator, David Scull, died in 1889. In his avíÍI he gave to each of his seven children, one-seventh of his residuary estate absolutely. He then provided: “And in case of the decease of either or any of my said seven children, residuary devisees, whether during my lifetime, or after my decease, without leaving any children, or the issue of a deceased child to survive them, or if leaving such child, children or issue, all of them should depart this life under the age of twenty-one years, without issue, then it is my will and desire that the part and share of my residuary estate intended for such child so dying and his or her children as aforesaid shall go to, and I do hereby give, devise and bequeath the same unto my surviving children, residuary devisees, their heirs, executors, administrators and assigns forever in equal parts or shares.” This clause of the will has twice before been considered by the Orphans’ Court. In Scull’s Estate, 27 W. N. C. 347, decided in 1890, it was held in an opinion by Judge Penrose that the seven children, who were the first takers, took each a vested one-seventh interest, subject to its becoming divested upon the happening of the contingencies provided for by the will. In making distribution, the distributees were directed to enter security for the protection of the contingent interests. Instead of giving security, however, the seven legatees, children of the testator, by agreement in writing, dated September 10, .1890, released one another from entering security, and released and confirmed to each other their respective shares in severalty, waiving all rights of survivorship. Again in 1909, the estate came before the Orphans’ Court, as reported in Scull’s Estate, 18 Pa. D. R. 297, and the question which is now raised, was considered. It was held, the opinion again being by Judge Penrose, (p. 298) that: “In any sense of the word the contingent interests are expressly limited to the surviving or other ‘children’ of the testator, and this does not include granchildren or more remote descendants.” In the same opinion it was further said that when the children of the testator who are entitled to the residuary estate, “being thus, exclusively, the owners of the present vested, and future contingent estates, agreed, as the answer asserts they did, that each of them should hold absolutely and indefeasibly, they, in effect, mutually released to each other their respective contingent interests, thus superseding, as they had the right to do, the order requiring security. This was a perfectly valid transaction, binding upon the parties and all persons claiming under them. The will gave no right to their children, who are, therefore, bound by the act of their parents, just as they would have been had the contingent interests been assigned or disposed of by will to strangers.” Judge Lamorelle filed a dissenting opinion. An appeal was then taken, but before the case was heard in this court, a settlement was effected between the parties, and judgment of nol pros was entered upon the appeal. This settlement was however restrict: ed to the share of Harriet Scull in the estate, and did not affect the share of Anna S. Reed, which is now under consideration. In the case at bar, the court below followed its former decisions. Judge Anderson after quoting the language of the will, further said: “That the words used are words of limitation and not of substitution is evident. The testator emphasized who are to take by the use of the words ‘residuary devisees’ and he gives not only to their heirs, but to their executors, administrators and assigns forever—the words usually employed in creating an absolute estate, and, excepting the word ‘heirs,’ absolutely inapplicable to express any other meaning than an absolute estate in the first taker.” Judge Lamorelle again dissented, and filed,the same opinion he had filed when the question was previously before the court. He was of opinion that, in the event of the death of one of testator’s children prior to the death of another without issue, “the share of the one so dying......should go to and be divided among his (testator’s) then living children and thé living child or children of a deceased child, per stirpes.”

We are unable to gather from the language of the testator any intention upon his part to benefit his grandchildren except in an indirect and uncertain manner. He gave his .residuary estate directly to his children, and by so doing made it possible for them to bequeath, a portion of the estate in turn to their children: But the testator gave nothing to the grandchildren. On the contrary, he made the fact of their existence, and that of their attaining the age of twenty-one, or leaving issue, the condition upon which the estate given to his children, should vest in them absolutely. It would indeed be a forced construction, in this case, to expand the word children so as to include grandchildren. The word was plainly not used by the testator as being co-extensive with issue, and there were in existence children who literally answered to the description. The principle involved has often been stated. Thus in Hallowell v. Phipps, 2 Wharton 376, Mr. Justice Rogers said (p. 380) : “Under a bequest to children, grandchildren and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise from a clear intention or necessary implication......The word ‘children’ does not ordinarily and properly speaking, comprehend grandchildren, or issue generally.” And in Castner’s Appeal, 88 Pa. 478, Mr. Justice Sterrett said (p. 491) : “It is the well established rule of construction in this State, as well as elsewhere, that the word children in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent.” In the present case, it was provided that if the share of one of the seven children became divested, through the happening of a contingency, which was to have that effect, that share was to go to the “surviving children, residuary devisees” thus identifying them with the particular children to whom he had confined his gift of the residuary estate. We think the Orphans’ Court very properly held that the children of the testator were clearly within their rights in releasing to each other all claims to contingent remainders, and that their children, having no claim except through their parent, are bound by the release.

The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.