Appeal of Ryon

Opinion,

Mr. Justice Clark :

This case turns upon the proper and true construction of the last will and testament of Esther Maginnis, deceased. The questions involved arise in the distribution of her estate. The facts are not seriously disputed. We find them stated in the paper books substantially as follows:

The testatrix was a daughter of Mrs. Margaret Maginnis, who died in the year 1868, seised of certain real estate, and leaving to survive her a husband, John Maginnis, and four children, viz.: Harry, Mary Ellen, intermarried with John Connor, Esther, and Clara, intermarried with Michael J. Kyou.

By the will of Margaret Maginnis, the children were entitled to the real estate equally, in fee, subject to the life estate of their father, who claimed as against the will his right as tenant by the curtesy.

At the time of, and for some time prior to, the death of Esther Maginnis, the father, John Maginnis, Esther Maginnis, and Clara Ryon, with her children, constituted the family. Esther died August 25, 1883. By her last will and testament, executed July lj[, 1883, she bequeathed to her brother, Harry Maginnis, fifty dollars ($50) ; and after some other bequests, declared in conclusion as follows: .

“As to the remainder of my interest in the estate of my beloved mother, I direct, that after deducting funeral expenses, and all other lawful debts, it shall be disposed of as follows, viz.: If said estate is sold before the death of my beloved father, then one half of said remainder shall be paid to him, absolutely, and the remaining half shall be given to my sister, Mrs. Clara Ryon, or her heirs or assigns.”

John Maginnis died in the summer of 1884, and in the following year the real estate of Margaret Maginnis, deceased, under proceedings in partition, was sold. Esther’s interest in the proceeds amounted to $1,301. After paying certain specific legacies, as to which there is no dispute, including the $50 to Harry, and deducting the costs and expenses of administration, the net residue was $841.36, which is the fund for distribution, under the clause of her will which we have quoted.

The appellant’s contention is, first, that the testatrix’s plain purpose was to dispose of her whole estate; that Clara Ryon was the principal object of her bounty, and was the sole residuary legatee, subject to the proviso that if the real estate was sold whilst her father lived, he should get one half, and Clara the other half; and, second, if this construction cannot be sustained, that she is, in any event, entitled to the one half. The latter was the construction of the will adopted by the auditor.

The appellees contend, however, that the testatrix, Esther Maginnis, only disposed of this residue in a certain contingency; that is to say, if the estate should be sold in the lifetime of her father; and, as that contingency did not happen, the legacies lapsed to the estate, and the fund must be distributed as if the testator had died intestate. The court below, overruling tlie auditor, adopted this construction of the will, and the distribution was made accordingly.

The estate of the testatrix consisted wholly of her interest under her mother’s will, and it is very plain that her intention was to dispose of the whole. She says : “ As to such estate, as it pleased God to entrust me with, I dispose of the same as follows,” etc. After making certain specific bequests, she says: “ As to the remainder of my interest in the estate of my beloved mother, I direct that after deducting, etc., it shall be disposed of as follows,” etc. It is a matter of little consequence, of course, what her intention was, if she actually failed to make a full disposition; but her intention being manifest, in the words of the will, it would be our duty to carry that intention into effect, if the will is reasonably susceptible of a construction consistent with that purpose. Notwithstanding her obvious intention, we think she failed, in a certain contingency, to dispose of that half which her father was to have, if the sale was effected in his lifetime; but we are inclined to agree with the auditor as to the other half. If the estate should be sold before the death of her father, she directs that one half of the remainder be paid to her father, whilst the remaining half of the remainder of her estate she directs shall be given to her sister. The terms employed in this clause of the will, in view of all the circumstances, may well give rise to doubt as to the testatrix’s meaning. Her father had a life estate in the property, and if it should be sold in his lifetime, she may have supposed it proper, as well as just, that some provision should be made for him, but no such reason applied in the case of her sister Clara. The question is, .whether the contingency expressed in the beginning of this clause applies to the father’s legacy alone, or was intended to extend to the devise or bequest to her sister. The provision for her father is clearly conditioned upon a sale of the land in his lifetime, for his half is to be paid to him; but Clara’s half of the remainder of her estate is to be given to her, which is consistent with the idea that she was to have her half whether a sale was made or not.

In the construction of a will the law, in doubtful cases, leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; especially when the contingency is an arbitrary one, tending to produce intestacy against the obvious purpose of the testator.

It may be, as the appellant contends, that tbe testatrix intended, in the event of her father’s death before a sale, her sister Clara should have the whole, but she has not so provided; and that this was her intention is urged in vain, in the absence of anything in the will to give it effect. It must be conceded that this case is not free from doubt; we are of opinion, however, that we have given effect to the true intention of the testatrix, as it is expressed in her will.

The decree of the Orphans’ Court is therefore reversed, and the report of the auditor confirmed; the appellees to pay the costs of this appeal.