Massey's Estate

Opinion by

Me. Justice Bbown,

William Massey died testate February 18, 1891. After directing that the income from his entire estate should be paid to his widow for life, he gave one-third of his residuary estate to his son, Walter S., absolutely, and the balance was disposed of as follows: “The remaining two-thirds of my estate (subject to the said life estate of income to my said wife) I give, devise and bequeath unto my executors hereinafter mentioned and their heirs in trust to pay the net income thereof equally to my two daughters Margaret R. Massey and Helen F. Massey for their sole and separate use respectively for their respective lives so that the same shall not be liable for their debts and contracts or for the debts or contracts of any husband that they may take, and from and after their respective decease upon the further trust to assign their respective shares of said residuary estate to and among their respective child or children or their issue for such share interest or estate as my said respective daughters whether married or single may respectively by will or writing in the nature thereof direct limit or appoint to and among their children, and in default of such appointment upon the further trust to assign and convey the shares of my said daughters respectively to their respective child or children equally. But, if my said daughters shall die without leaving any child or children living at the time of their respective decease, or, if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my executors upon the trusts above mentioned.” The widow of the testator is long since deceased and the son Walter died May 29, 1909, without having had issue. He left a widow and a will, by the terms of which he gave all of his property to his sister Helen. His widow elected to take against the will, and, upon the audit of the account of his executors, she was awarded one-half of his estate and his sister Helen the other half. Margaret, the other daughter of the testator, died July 13, 1910, intestate, unmarried and without issue, and the question before the court below, in distributing the fund in the hands of the Philadelphia Trust, Safe Deposit and Insurance Company, substituted trustee for the two daughters of the testator, was whether the estate of Walter, who died before his sister Margaret, without leaving issue, was entitled to share in the distribution of the fund held in trust for her. Prom the decree of the court below, awarding one-half of the said trust fund to the estate of Walter, his surviving sister Helen has appealed.

The auditing judge awarded to Walter’s estate one-half of the fund held in trust for his sister Margaret, on the ground that his estate had a vested interest in her trust estate under the term's of his father’s will. In overruling the exceptions to the adjudication and confirming it the court below avoided a decision as to what interest Walter had during his life in the fund held in trust for his sister, holding that the only question before it was what interest, if any, in that fund had passed to his estate upon her death.

If the testator had directed that, upon the death of his daughter Margaret without issue, the share held in trust for her should go to his heirs at law, the heirs to take would be those who were living at the time of his death, for no contrary intent appears in his will: Buzby’s Appeal, 61 Pa. 111; Stewart’s Estate, 147 Pa. 383; Fitzpatrick’s Estate, 233 Pa. 33. Walter was one of those heirs, and his estate would now take his share in his sister’s trust estate; but that there might be no doubt as to the intention of the testator as to who should take if Margaret should die without issue, he declared that the estate held in trust for her should belong to his two other children, “to my other children mentioned in this my will and to the issue of any of them being then deceased.” Walter was one of these two children, the other being the surviving daughter. The survivorship was confined to the daughters. Walter or his issue were to take one-half of the trust fund without condition upon the death of either of his sisters leaving no issue. As Walter died without leaving issue, the limitation over to his issue, if he should die leaving any, becomes utterly unimportant as a substitutionary clause and need not be considered in the distribution: Carstensen’s Est., 196 Pa. 325. The clear and well considered opinion of the court below relieves us from any further discussion of the questions raised by the appellant.

Decree affirmed, with costs to the appellee.