Appeal of Fairfax

Mr. Justice Gordon

delivered the opinion of the court,

• The appellants are the grand-nephews and nieces of the testator, Dr. Scott Stewart, and the grandchildren of Robert Gay, and his wife Eliza, formerly Eliza Stewart.

This contention arises in the manner following: — Dr. Stewart died in Philadelphia, on the 27th of June, 18S1, leaving a will dated November 1st 1877. That part of the will, which is material to this case reads thus : t; Item 8. I give and bequeath unto each of the children of Robert Gay, of Augliedella, county of Tyrone, and Eliza his wife, formerly Eliza Stewart, who may apply for the same within twelve months after my decease, the sum of two thousand dollars.” There was also a codicil to this will, dated June 21st 1879, as follows : “ Second, in explanation of item 8, of my will, I further direct that as to such of the children of Robert Gay as shall fail within twelve months of my decease to communicate, by writing, information of their existence and whereabouts to my executors, the legacy to them thereafter shall be treated as can-celled.” On behalf of the appellants, it is contended, that they are entitled to take the bequests to their parents, by virtue of the second section of the Act of May 6th 1844, .in and by which the legislature speaks in this manner : “ No devise or legacy hereafter made in favor of a brother or sister, or the children of a deceased brother or sister of any testator, such testator not leaving any lineal descendants, shall be held or deemed to lapse or become void by reason of the decease of such devisee or legatee in the life-time of the testator, if such devisee or legatee shall leave issue surviving the testator; hut such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct otherwise.” It is seriously contended that this part of the statute covers every point claimed by the appellants. “ (a.) These are legacies in favor of the children of a deceased sister of the testator. (5.) The testator did not leave any lineal descendants, (a.) Four of the legatees died in the lifetime of the testator, (a.) Three of the deceased legatees have left issue surviving the testator; viz., these appellants. (e.) The execution of tlie will was subsequent to the enactment of the statute, and hence subject to its provisions.”

But the great and serious defect in this statement is, that it leaves out the material fact, that, at the time of the making of the will of Dr. Stewart, no devises or legacies were intended to vest in the parents of these appellants. In that will the intention of the testator is very clearly expressed, and such being the case, it is unnecessary for us to look to the books for authority on the question of construction, which, after all, must bo determined by the words of the will itself.

If, however, we do so look, we shall find the rule to be, that where the devise, or bequest, is to such person or persons as shall live to a certain age, or shall sustain a certain character, or do a particular act, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the person or persons who are to take, the devise or bequest is necessarily contingent : McBride v. Smyth, 4 P. F. S. 245.

Tried by this rule the case of the appellants utterly fails. That part of the will of Dr. Stewart under discussion, makes a present gift to no one, but only to particular persons who shall be iri existence at the time of bis own decease, and who shall personally make known their existence to bis executors. The qualifications of the persons who are to take are three-fold ; they must be children of Robert and Eliza Gay ; they must be in being at the testator’s death, and they must make personal application for the bequest. There is here no precedent devise to a class, but to individuals who are to have particular descriptions and qualifications, and who are required to do a particular act, and as these are all uncertain and contingent, the bequests are, and necessarily must be, of a like character.

Decree affirmed at costs of appellants.