DocketNumber: Appeal, No. 319
Judges: Frazer, Kephart, Moschzisker, Sadler, Schaffer, Simpson, Walling
Filed Date: 4/14/1924
Status: Precedential
Modified Date: 10/19/2024
Opinion by
Henry G. Freeman died on February 15, 1875, and, by his will, duly probated, gave his residuary estate to the Girard Trust Company, in trust, to divide the net income of the estate, after the death of his widow, into six equal parts, one share to be given to each of his children, and “from and after the death of either of my sons or daughters and until the death of all of them, to pay the income which he or she would, if living, have received to such persons or persons of kin to such son or daughter as he or she may by will have appointed, in default of such appointment to the child or children of such son or daughter that may then be living, or the issue of any child or children of such son or daughter that may then be dead, leaving issue, in equal shares equally, as however that such issue shall take per stirpes only a parent’s share, and if there be no children or issue of such son or daughter then such person or persons as would take from, through or under me had I lived until then and died intestate. In trust when and so soon as the longest liver of them, my sons and daughters, shall be dead, to make partition, allotment and division of my entire estate, real and personal to and amongst the persons receiving or entitled to the income thereof immediately prior to such death, by virtue of the previous clauses of this my will, and the persons who under the said clauses would be entitled to the income of the share of the said longest liver, at his or her death according to their several and respective rights, shares, interests and estates in said income.”
At the present time, we are concerned with the disposition of the income derived from one of these shares
The soundness of this contention necessarily rests on the proper construction of Freeman’s will, the pertinent provisions of which have been cited. Were the shares vested in the children, the parties to whom the income was given, at the time of testator’s death, with the power of appointment, in default of which the issue received their parent’s share? The auditing judge has found that the payments were properly made to the executor of Lily, and that the sum accruing after the death of her husband should be turned over to the administrator d. b. n. c. t. a. of the wife. The provisions of her will have not been submitted to us, but we will presume the latter part of the order is justified. The sole question for our consideration is, therefore, the effect of the original testament of Freeman. Did it establish vested or contingent interests in the income?
A like question arose when the second account of the trustee in this estate was filed in 1908, and the rights of the parties holding through Charles D. Freeman, a
The contention advanced on this appeal, — and a repetition of the one suggested in the earlier case referred to, — is that the income must be distributed, under the will, to the children and their issue alone, until the death of the last survivor of the first class, as indicated by the use of the word “then” in providing for an ultimate distribution of the principal. It has been held in several cases, where the purpose was evident that the sums received as income were to be kept within certain lines, until a fixed time was reached, the estate was contingent, and this rule is illustrated by Kemble’s Est., 279 Pa. 368; Maxwell’s Est., 261 Pa. 140, and Huddy’s Est., 257 Pa. 528. But the provisions made by testator differ. He shows a clear intention to vest the one-sixth part in each line of descent, starting with the four sons and two daughters, giving to them the power to appoint kin to receive their respective shares, if they should die. We do not see how anything can be profitably added to the opinion of the Superior Court, above cited, delivered by Judge Henderson, which disposed of the same question, and further discussion seems unnecessary.
It is, however, not required on the present appeal that any contention, save that expressly brought forth before us by the assignments of error, be considered, and these are overruled.
The decree is affirmed at the cost of appellants.