Fitzpatrick's Estate ( 1911 )

Opinion by

Mr. Justice Elkin,

John J. Fitzpatrick in his last will and testament provided, inter alia, as follows: “I give and bequeath to my hereinafter named executor, the sum of twelve thousand dollars in trust as follows: the same to be invested at interest in good security and the net income thereof to be regularly paid to my sister, Catharine, wife of Charles W. Eckert, during her lifetime and after her death I give and bequeath said principal sum of twelve thousand dollars to her children in equal shares, but in the event that no children survive her then I give and bequeath the same to my legal heirs.” The sister for whose benefit the trust was created died without leaving issue and the question arises to whom shall the corpus of the trust estate be distributed. The learned court below directed the distribution to be made to the “legal heirs” of the testator living at the time of his death. In so doing he applied a rule of construction of almost universal application. The rule is never varied unless from the four corners of the will a different intention clearly appears. This is conceded by learned counsel for appellant, but it is urged that the will considered as a whole does show a different intention. With this contention we cannot agree. The will was drawn by a skillful hand and the language used to express the intention of the testator is clear and unambiguous. A trust was impressed upon the fund set apart for the benefit of the sister during the period of her life. At her death the principal sum was to be divided among her children in equal shares, “but in the event that no children survive her then I give and bequeath the same to my legal heirs.” No children did survive the sister and hence the contingency happened for which the testator made provision. In that event the principal sum was to go to his legal heirs. Who are his legal heirs? This question has been asked and answered in numerous adjudicated cases. They are the heirs living at the death of the testator unless a different intention clearly appears from the will itself. In the present case violence would be done to the plain meaning of words if it should be held that a different intention clearly appears. On the contrary, giving the language used its natural import, the clear intention of the testator seems to have been to provide for the contingency in the event that his sister die leaving “no children survive her.”

In the construction of wills there are instances in which the word “then” as used in connection with a devise of property has been held to be an adverb of time, but this is not the general rule, which is, that it does not point to the time but indicates the event. In the case at bar we are clear that it refers to the event upon the happening of which the legal heirs take, and not to the time when their right to take begins. To this effect can be cited the following cases: Buzby’s App., 61 Pa. 111; Ashton’s Est., 134 Pa. 390; Stewart’s Est., 147 Pa. 383; McCrea’s Est., 180 Pa. 81; Fuller’s Est., 225 Pa. 626. To this might be added a long line of cases in our own state as well as from other jurisdictions. We think the case was properly disposed of by the learned court below.

Decree affirmed, costs to be paid out of the estate.