Hildebrant's Estate

Opinion by

Mr. Justice Simpson,

By Ms will Martin Hildebrant made certain minor gifts, not necessary to be here considered, and in disposing of the residue of Ms estate gave the income thereof to his wife for life;, on her death the income to Ms son Harry, for life, upon a spendthrift trust; “and upon and after the death of my said son, Harry K. Hildebrant, and subject to all the foregoing provisions of this my will, I direct my executor or executors to give and pay all the residue and remainder of my estate, real, personal and mixed, to such child or children as the said Harry K. Hildebrant may leave to survive him; and, in the event that he shall die without leaving issue, I direct my estate to be divided among my relatives under the intestate laws of Pennsylvania.” He left surviving him his widow, his son, and certain collateral relatives, one of whom is the appellant. The son died first, intestate, never having had any children, but leaving as his next of Mn his mother and his widow; then the son’s widow died; and finally the widow of testator died.

Upon settlement of the final account of testator’s executors, the auditing judge awarded the residuary estate to the son’s administrator; but, upon the hearing of exceptions filed by testator’s collateral relatives, he reached a different conclusion, and, after dismissing the exceptions, made a final decree awarding one-half the residue to the administrator of the estate of testator’s widow, and the other half to the executor of the will of the son’s widow. From this decree, William H. Hildebrant, one of the collateral relatives, prosecuted an appeal to the Superior Court which affirmed the decree by a divided court, and therefrom the present appeal was allowed. The only question for consideration is: Who are meant by the word “relatives” in the residuary clause of testator’s will?

As already quoted, it gives to the widow and son successive life estates, and then proceeds: “upon and after the death of nay said son......and subject to all the foregoing provisions of this my will I direct my executor or executors to give and pay all the rest and residue of my estate......to such child or children as the said Harry K. Hildebrant may leave to survive him.” It may be admitted that the use of the words “upon and after” would not alone prevent a vesting of the estate; bait it is clear, from the foregoing language, that those who are to take the residue are not the grandchildren who survive the testator, but those, if any, who survive his son. It is fair to presume this thought was continued throughout the balance of the will; indeed it is the normal meaning of the words: “in the event that he [the son] should die without leaving issue [which of course means issue surviving him and not issue surviving the testator] I direct my estate to be divided among my relatives under the intestate laws of Pennsylvania”; and it is also the usual legal conclusion, where, as here, the gift to the remaindermen is found only in the direction to “divide” the estate among them: Moore v. Smith, 9 Watts 403; Rau’s Est., 254 Pa. 464; Evans’s Est. (No. 1), 264 Pa. 357.

Moreover, while it is of course true that a son may be held to be a relative, even though he is called “son” everywhere else in the will, and though popularly he never would be called a relative, yet certainly a son cannot be “relatives” — the plural form of the expression necessarily excluding him. McFillin’s Est., 235 Pa. 175, relied upon by appellees, is not controlling. There the gift in remainder was to the “person or persons who shall be entitled thereto as my next of kin.” The son there was a “person” who was the “next of kin” of that testator; while here the son cannot be “relatives” of this one.

The same conclusion follows from the provision that the estate shall then be “divided among” his relatives. “Divided among” necessarily refers to a gift to more than two relatives, and hence excludes the son, even if technical rules of construction would otherwise call for a decision in his favor.

Considering the will in its entirety, as of course we must, we have reached the conclusion, for the reasons above stated, that the balance for distribution should have been awarded to testator’s collateral relatives, who survived his son Harry.

The decree of the court below is reversed and the record is remitted with directions to make distribution in accordance with this opinion; appellees to pay the costs of this appeal.