Estate of Wengerd

Opinion,

Mr. Chief Justice Paxson:

The contention in this case arises over the following clause in the will of John Wengerd, deceased:

“ I direct my executors, hereinafter named, to sell, at public or private sale, my house and lot on the east side of Penn street, known as the pastorage; and for the purpose of enabling them to do so I hereby authorize them to make, execute, acknowledge and deliver the necessary deed or deeds to grant and convey the same to the purchaser or purchasers thereof; and the proceeds of the said sale, together with the proceeds of all bonds, notes, and cash on hand, with the proceeds of my personal property, I direct my said executors, after paying the legacy, heretofore mentioned, my just debts and funeral expenses, and the expenses of administration, to divide into three equal shares, which I hereby bequeath as follows, viz. r To Mary Gettle one third; to Elizabeth Koser one third; and to John Wengerd, Harry Wengerd, and Catharine Wengerd, children of my son David Wengerd, deceased, the remaining one third to be equally divided between them, share and share alike; and in case of the death of any of the children of my son David, before the payment to them of their said share, then to be divided between the survivors.”

John Wengerd, one of the grandsons above named of the testator, died about eleven months after the death of the latter. He had received two hundred dollars of his share before his death. He left a will in which he made his widow, Jane E. Wengerd, the appellant, his sole legatee and executrix. She now claims, under her husband’s will, the balance due him under the will of his grandfather. The court below rejected her claim; hence this appeal.

The question is, when did the legacy to John Wengerd vest, if it vested at all ? And, if it vested at the death of the testator, was it divested by the accident of John’s death before the full and final distribution of his grandfather’s estate ? That the executors regarded his interest as vested is clear from the fact that they paid him two hundred dollars on account of it; and it is equally clear, had the distribution been made, as it might well have been, prior to John’s death, he would have been entitled to the share. The testator had no debts. With the exception of- a house and lot, his estate not otherwise disposed of consisted of cash securities and money which could readily have been distributed almost immediately after his death. The account was not filed until two years after the testator died, and then in obedience to a citation. We do not think the executors can defeat the rights of a legatee by delaying distribution.

In considering the nice question whether a legacy is vested or contingent, regard must always be had to the position of the parties. In construing a will, where the bequest is ambiguous, the inclinations of the courts are always towards vesting the legacies: Coggins’ App., 124 Pa. 10. The presumption that a legacy was intended to be vested, applies with far greater force, where a testator is making provision for a child or a grandchild, than where the gift is to a stranger or to a collateral relative, as in Haverstick’s App., 103 Pa. 394. It would be straining a point to hold that this testator intended that his grandchild should be deprived of his share, though he should die leaving a child or children, by the mere accident of his death the day before the money was distributed. This would enable an executor, under some circumstances, absolutely to defeat the will of his testator, by withholding or refusing distribution for a certain period. We cannot assume that this testator intended to lodge such a power in the hands of the executor of his will.

The doctrine of this state, from the time of Corbin v. Wilson, 2 Ash. 178, has uniformly been that a bequest of personal property relates to the time of the testator’s death, unless a contrary intent is clearly indicated in the will. “ If any immediate legacy is given without specifying a time for payment, and is given over in case the legatee dies before it becomes payable, the word, payable, can only have reference to the death of the testator:” Jarman on Wills, 809; and the same learned author says, in volume 3 of the same work, page 612: “ Executory gifts over, in the event of legatees dying before receiving their legacies, have given rise to much litigation. Actual receipt may be delayed by so many different causes that the court is unwilling to impute to the testator an intention to make that a condition of the legacy, and thus indefinitely postpone the absolute vesting of it.” In Rammell v. Gillow, 15 Law J. Ch. 35, where the will directed that the fund should go in equal shares to testator’s children when they should attain twenty-one years of age, but, in the event of the decease of any of said children before they should have received or become possessors of their share, said share was to go to their children, it was held that those who had attained the age of twenty-one took vested interests', even though they died before receiving the money. In Hutchin v. Mannington, 1 Ves. Jr. 366, there was a gift over, if the legatee should die before he may have received it; and Lord Thurlow said: “ I am to compute what time would be sufficient to enable these parties to receive their legacies. It is. all too uncertain. Suppose we have given real estate in the manner you specify. It is clear that it will neither depend on the caprice of the trustee to sell, for that would be contrary to all common sense, nor upon his dilatoriness. In some way it may be sold immediately; but I should not inquire when a real estate might have been sold with all possible diligence, for it might be the very next day, or that very evening, and therefore the court always, in such a case, considers it as sold the moment the testator is dead; for, where there is a trust, that is always considered here as done which is ordered to be done, and the court cannot measure the time. In this case it is an immeasurable purpose; I can do nothing with it, and it must be considered as vested from the death of the testator.” Martin v. Martin, L. R. 2 Eq. 404; Minors v. Battison, L. R. 1 App. Cas. 428; and many other English cases hold the same doctrine.

The only case cited in opposition to this line of authority is Haverstick’s Appeal, supra, which, while it gives color to the appellee’s contention, differs in some respects from the case in hand. There, the appellant claimed as the heir of his deceased wife. The clause in the will was, “ Should any of them die before the distribution of my estate, without heirs, then the part allotted to such shall be divided equally among the others named.” The court held that the word “ heirs ” meant “ children,” and that the appellant was not entitled as heir to the legacy. The whole contention was over this point.

The decree is reversed at the costs of the appellee ; and it is ordered that the record be remitted, with instructions to make distribution in accordance with this opinion.