Fox's Estate , 222 Pa. 108 ( 1908 )

Opinion by

Mr. Chief Justice Mitchell,

The general intent apparent throughout the scheme of the will was to make equality among his daughters during their lives with remainder to the children of those leaving issue. In pursuance of this intent the estate was to be held as a unit until the oldest daughter should come of age and then severed as to her, and so on to each daughter in turn until the youngest reached full age when there would be four separate trusts, one for each daughter in severalty. If one of the daughters had died without issue before any severance there can be no doubt that the others would have taken her share as survivors by the express terms of the will. If such daughter died after her share had come to be held separately the direction of the will is the same and the others would have taken as survivors. But if the daughter first dying left issue her share would be distributed to them and it is argued that then they would have received their full share, their claims under the will would have ended and they would be excluded from participation in the share of another daughter subsequently dying without issue. As was forcibly said by Judge Penrose : “ If the word ‘ surviving,’ as used by the testator, is to be understood in its precise, literal sense, it necessarily follows that while he made careful provision for his grandchildren, giving to them the ‘inheritance and fee simple ’ of the shares originally held in trust for their mother, whose interest was expressly confined to the term of her life, he intended that only the children of a daughter who survived a sister who left no issue should share in the distribution of the part held in trust for her, and to exclude all others; and it also follows that he must have intended if the last survivor of his daughters should die without issue, even though all his'other daughters had left children still surviving, there would be an intestacy.”

But this result is clearly not in harmony with the general intent and scheme of the testator. He treated all his daughters alike, gave each one-fourth of his estate for life with remainder to her issue. Not one of them was vested with power -to break the succession of her issue in remainder and nowhere is there any indication that he intended to make any distinction among his descendants of the second generation as to their ultimate share in his estate. That the issue of a sister dying first should thus be cut off from participation in the share of a sister dying subsequently without issue, would be giving an accidental and irrelevant fact an effect contrary to the manifest general intent and an exercise of the power withheld from the daughters themselves. As said by the auditing judge below: “ It is well settled, however, that the word survivor or surviving, will be understood as the equivalent of ‘other,’ where in any other sense it would lead to an intestacy or to inequality among those standing in the same degree of relationship to the testator, or to a distribution not in accordance with the general scheme of the will in its entirety: Lapsley v. Lapsley, 9 Pa. 130; Williams on Executors, 1577; Theobald on Wills, 355. See also Vance’s Estate, 11 Pa. Dist. Rep. 197; s. c., 209 Pa. 561; Park’s Estate, 21 W. N. C. 227; Hubbert’s Estate, 6 Pa. Dist. Rep. 96; Vogdes’s Estate, 16 Pa. Dist. Rep. 377; Lewis’ Appeal, 18 Pa. 318, etc.”

It is not necessary to resort to the artificial and arbitrary construction that “ survivors ” meant survivors at the testator’s death. ^The time in testator’s mind was clearly the death of each daughter dying without issue, but he did not mean to make shareskrf any group of his grandchildren dependent on the accident ofi their mother’s survival of her childless sister. The word “ othek” very clearly expresses his general intent and that is the sense inxwhich he used the word “ survivors.”

Decree affirmed.