Kellerman's Estate , 1901 Pa. Super. LEXIS 235 ( 1901 )

Opinion by

William W. Porter., J.,

William Kellerman. left to survive him his widow, two brothers, two sisters, the children of a deceased sister, and the children of two deceased brothers. By his will he provides for his widow for life; makes a number of provisions for his collateral relatives; orders a sale of residuary real and personal property and directs, “ the money arising therefrom to be distributed amongst my brothers and sisters share and share alike, according to the intestate laws.” Under this clause, do brothers and sisters living at the time of the decedent’s death, take “ share and share alike,” or, do children of the deceased brothers and sister also participate by reason of the use of the words, “ according to the intestate laws ? ” The two phrases are plainly inconsistent. Both cannot stand. That must remain which accords best with the whole testamentary intent as expressed by the will. The report of the auditor (confirmed by the court below without opinion) reaches, we believe, the right conclusion, namely, that the surviving brothers and sisters take to the exclusion of nephews and nieces. This we hold for three reasons. First, the primary beneficiaries are benefited by this construction, which carries the estate to those who are nominated by their relationship, and not to those included by reference to a provision of law. Second, the will was made by the testator with knowledge of, and provision for, the nephews and nieces, severally. This class of distributees was, therefore, in his mind and could have been, but was not, included in the residuary clause, as a designated class. Third, the will was made with knowledge that the brother, under whom the appellants now claim, was dead. The ordinary use of the terms brothers and sisters, would not include a deceased brother. We do not feel compelled to go further in the discussion covered by the auditor’s report.

The decree is affirmed.