Field's Estate , 266 Pa. 474 ( 1920 )

Opinion by

Mr. Justice Walling,

Elizabeth S.. Field, late of Philadelphia, died testate in 1889, and her last will gives all of her estate, except $200, “unto the Provident Life & Trust Company their successors and assigns forever in Trust for my niece Elizabeth Stockdale Field daughter of my brother the late Benjamin Field her heirs, executors, administrators and assigns forever provided however that if my said niece should not marry or being married should die without issue living at the period of her death, it is my will and I hereby direct that my said Estate shall go and be distributed among the following persons” (naming them). She also appointed the trust company executor, and by a codicil authorized it to sell all her real estate. The niece is still living, but unmarried, and in 1917 was adjudged feeble-minded and the Philadelphia Trust Co. is guardian of her estate, which amounts to $24,000. This appeal is by the guardian from a decree of the orphans’ court refusing its petition for the fund and continuing the trust.

The case was properly decided. In the opinion of this court by Mr. Justice Strong, in Sheets’s Est., 52 Pa. 257, 263, it is held that “No principle is better settled than that if a testator in one part of Ms will give to a person an estate of inheritance of land, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability ; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right”; and in; Shower’s Est., 211 Pa. 297, it is said in the opinion by Mr. Justice Mestrezat (p. 302) : “It is settled by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator.” These and other like authorities are collected and reaffirmed in Smith v. Piper, 231 Pa. 378. Our case seems to be stronger than some above cited, for here the gift is cut down to a lesser estate in the next succeeding words of the same clause. The estate of the first taker, however, will not be cut down unless the intention to do so clearly appears: Robinson v. Jones, 222 Pa. 56; but, where such intent does clearly appear, it will be given effect: Kreb’s Est., 184 Pa. 222; and that is this case.

The next question is whether the event that the niece should not marry or being married should die without issue is to be determined as of the death of the testatrix or of the niece. It may be conceded that the words “die without issue” and “death unmarried” usually mean such death in the lifetime of the testator, but that is only so where the will fails to disclose a contrary intent: Powell on Devises (3d ed.) p. 763. Here the language of the will differs from that in the cases cited for appellant, and, taken as a whole, leads to the conclusion that the event upon which the gift over is to take effect must be determined at the death of the niece; and we agree with the orphans’ court that the contingency of the niece not marrying means during her own life and not that of the testatrix. If the latter, then she would take nothing as she failed to marry before the death of testatrix; an impossible construction. This is well stated in the opinion of the court below by the late Judge Anderson, where, after citing cases in which the words “death unmarried” refer to such event in the testator’s lifetime, he adds: “In cases above cited the testator refers to the ‘death unmarried’ of the first taker, while in the present case the gift over is to take effect not upon her death unmarried, but in the event that she should not marry, in other words, upon the contingency of the legatee remaining unmarried not only during the testatrix’s lifetime, but during the legatee’s lifetime. If we were to apply the doctrine of these cases to this will and refer the contingency ‘should she not marry’ to the testatrix’s lifetime, the result would be that, at the death of the testatrix, the legatee, not having married, the gift over took effect and no interest whatever vested in the first taker. Such a conclusion cannot be conceived and proves undoubtedly that the testatrix did not contemplate the contingency of the first taker’s marriage in her lifetime.”

The placing of the estate in a trust and investing the trustee with authority to convert the real estate, indicate an intent that the property shall be kept intact and not pass directly to the niece upon the death of testatrix. A trust to support contingent interests in remainder is valid although active duties are not imposed upon the trustee. See McKinney’s Est., 260 Pa. 123; Price’s Est., 260 Pa. 376; Stewart’s Est., 253 Pa. 277; Spring’s Est., 216 Pa. 529; Denis’s Est., 201 Pa. 616; Dodson v. Ball, 60 Pa. 492.

Admittedly the law favors an absolute rather than a defeasible estate and a vested rather than a contingent one, yet every will presents its own problem. It follows that the trustee should remain in possession of the estate and pay the income therefrom to the guardian of Elizabeth S. Field, and that, upon her death without issue, the fund will pass to the substituted beneficiaries.

The decree is affirmed at the costs of appellant.