Wagner's Estate , 1921 Pa. Dist. & Cnty. Dec. LEXIS 32 ( 1921 )

Gest, J.,

Notwithstanding the earnest argument presented in behalf of the exceptants, we are entirely satisfied with the adjudication of the auditing judge. There is, it may be conceded, no doubt that the word “remaining” would, prima facie, mean “other,” and refer to the shares of those cestuis que trust who survived the testatrix, but the limitation over on the death of any of them, in default both of testamentary appointment and of issue, is “in trust as well as respects his or her original share, or any share which shall afterwards have accrued to him or her under the provisions of this clause of my will, to hold or assign and transfer the same to the use of such persons and for such estates as the remaining shares shall then be holden by the said trustee.” We are of opinion that these last words are controlling, and that the fund was properly awarded to the trustee for those legatees who were living at the death of Florida Innes [A], and whose “remaining Shares” were “then holden by the said trustee.” No contrary construction can be based on the reference in the will to accrued shares. That clause may apply, and was doubtless intended to apply, in case of the death in the future of any of the survivors without appointment and without leaving issue, and cannot reasonably be construed as referable to a share that would not, according to the theory of the exceptant, “accrue” to a legatee until after his death. If that had been the intention of the testatrix, she would certainly have expressed it with particularity, but, in order to adopt the argument of the exceptants, we should be required to rewrite her will.

We do not consider it necessary to add anything further to the careful adjudication of the auditing judge, and accordingly the exceptions are dismissed and the adjudication is confirmed absolutely.