Wunder's Estate

Per Curiam,

At the audit of the account of the executor of Sarah |Wunder, deceased, the balance for distribution was claimed by the next of kin of decedent,—alleging an intestacy,—and by the heirs-at-law of her deceased husband ; an award to the latter, and the allowance of the claim of a third party against the estate, were approved; this appeal followed.

The decree appealed from is affirmed on the following excerpts from the opinion of the court below: “The question we are called upon to decide relates to the distribution of the testatrix’s residuary estate, with regard to which she provided as follows: ‘All the rest, residue and remainder of my estate......I give, devise and bequeath unto the West Philadelphia Title & Trust Company..-----in trust nevertheless and for the following uses and purposes, that is to say, to pay over to my beloved husband Edmund L. Wunder the sum of fifteen dollars weekly as long as he shall survive me. Should ■however the income from my said estate be not sufficient to fully provide for said weekly payment of fifteen dollars to my said husband, I hereby authorize and empower my trustee to apply so much of the principal and corpus of my said estate as may be necessary to. fully provide for said weekly payment to my husband. From and immediately after the decease of my said husband I direct my said trustee to pay over the balance of my said estate remaining in its hands in such manner and to such persons as my said husband may direct by his last will and testament. Should he however die intestate I direct my said trustee to pay over said balance to the heirs-at-law of my said husband.’......The gift to the heirs-at-law of the husband is an alternative one, and, as he died in the testatrix’s lifetime, the alternative gift becomes effective. Those entitled to participate do not take through the husband but by substitution, and the use of the word ‘husband’ serves only to designate the class entitled to take......Where the word ‘heirs’ is used in a bequest of personalty it means heirs as ascertained by the statutes of distribution, unless a contrary intent is indicated by the will (see Gilmor’s Est., 154 Pa. 523; Klein’s Est., 26 Pa. Dist. R. 145); we find nothing in this will showing an intention by the testatrix to give the word any other meaning. Nor do we think the estate of the testatrix is entitled to participate in the distribution. The case is not to be cpnfused with that class of cases (of which Roger’s Est., 24 Pa. Dist. R. 824, is an illustration) in which an estate is given to a husband or wife for life with remainder to the testator’s heirs or next of kin, in which it has been held that upon the death of the life tenant the estate of the life tenant is entitled to participate. In the present instance, literally considered, Mrs. Wunder [the testatrix] comes within the designated class, but the theory on which her will is constructed does not show that she intended to include herself as one of her husband’s heirs,—rather the contrary; for, by giving her husband a power of appointment with an alternative gift in favor of his heirs in the event of his failure to exercise the power, she showed conclusively her intention to exclude her own relatives from any participation in her estate......If, by a literal application of the statutes of distribution her estate should be permitted to participate, we would have this anomalous result: that the one-half which fell into her estate would pass under the residuary clause, one-half to the heirs-at-law of her husband and one-half to her estate, and this latter one-half would go through the same process, one-half by one-half, ad infinitum.” After thus correctly ruling on the main branch of the case, the court below disposes of the only other matter with which we are here concerned as follows: “The auditing judge állowed [the claim of a third party] in the sum of $1,663, which was objected to by the exceptants [appellants], but admitted to be due by those whom the auditing judge found to be the parties interested in the estate; as ex-ceptants are not entitled to share in the distribution, they are without standing to object to the allowance of the claim.”

The assignments of error are overruled and the decree is affirmed at cost of appellant.