Tomlinson's Estate ( 1915 )

Opinion bv

Head, J.,

This is a friendly contest between the personal representatives of Albert S. Tomlinson, deceased, and the guardian of his minor children. The said Albert was a nephew of Isaac W. Tomlinson, the testator, and survived the latter but died during the life, of the widow of the testator, leaving to survive him minor children. The single question is, do these children take under the will of the testator the share that would have gone to their father had he survived the widow, or was that share indefeasibly vested in their father Albert by his survivorship of the testator so that his children had nothing under the will?

Established rules of construction are valuable and necessary in the construction of wills of such character that it is impossible, without resorting to such rules, to determine the intent of the testator. But where such intent can be reached by fairly interpreting the language of the will itself, we need not have recourse to rules that were made for doubtful cases only. In the present case it is clear the widow of the testator was the first and chief object of his bounty. While she lived, her welfare dominated all other considerations. So evidently true is this that even in the bequest to the cemetery company of a sum of money, the income of which was to be applied to the upkeep of the burial lot of the testator, it was provided this bequest was not to begin during the lifetime of his wife. The testator further gave to his wife, during her lifetime, all of the income to be derived from either real or personal estate, and, considering the possibility this might not be sufficient for her wants, he declared that, in such event, she should have the right, in addition to the income, to the sum of $200 of the principal each and every year while she lived. These provisions point strongly to the idea of the testator that even the amount of his estate, if any, that might be the subject of any bequest over, could not be ascertained until the happening of the death of his wife.

■ There is no legacy to any one nomination. His language is, “after the death of my wife my will is that my estate be divided equally between my nephews and nieces and the heirs of those who are deceased, the heirs of those who are deceased to have the parent’s share.” We suppose it to be conceded that in this clause the testator used'the word “heirs” as legally synonymous with children. He does not use language which indicates a then present intention in his mind to give anything to any particular person. His.clearly contemplated purpose was a division of his property after the death of his wife. Among whom was that division to be made? Had he previously given to his nephews and nieces, and the heirs of those deceased, the residue of his estate, the mere fact that the distribution could not take place during the life of his wife, would not prevent the legacies from fully vesting. All of the cases so hold.

But here the gift itself is an integral part of his plan of distribution. It is only because certain persons are described and designated as distributees they can, with propriety, consider themselves legatees at all. They cannot dissever the single clause of the will on which their title rests, affirming the right of the testator to make his own plan of distribution, but denying to bim the equally clear right to name or describe those whom he wishes to share in that distribution. Has he not done this? Had he stopped with the declaration that the distributees were to be his “nephews and nieces and the heirs (children) of those who are deceased,” it might be fairly argued his actual intent was that-assigned by the law to the use of such a phrase. But the testator has gone farther. He has not left to legal construction the determination of the effect of the death of one of his nephews or nieces before the division was to be made. He declares, in the same clause of the will that the “heirs (children) of those who are deceased to have the parent’s share.” In the face of this direction why should we, how can we, undertake to say the children of Albert, a deceased nephew, are.not “to have the parent’s share”?

We suppose the principle contended for by the appellant is as strongly stated in McFillin’s Est., 235 Pa. 175, as in any other case, but even there it was said the general rule of, construction in such cases would always give way if a different intent was plainly manifested in the will. We regard this will as coming within that exceptional class. The distinction we think is clearly enough pointed out in the opinion of the learned Orphans’ Court dismissing the exceptions to the readjudication. That opinion will be printed as part of the report of the case.

For the reasons here indicated, as well as those stated by the learned court below, we adopt the conclusion there reached.

Decree affirmed.