Estate of Rowland

Opinion,

Mr. Justice Williams:

Rowland, the testator, died in 1887. By the terms of his will he gave his entire estate, real and personal, to his wife for her life. Upon her death, the dwelling-house and household goods wore to go to his daughter Delia during her life, but the rest of his estate he gave to the trustees upon the following trusts:

1. To invest the personal estate, and collect the income thereof, and to collect the rents, issues, and profits of his real estate.

2. To pay out of the income so provided the sum of two thousand five hundred dollars per annum to Delia during her life, and the sum of seven hundred dollars each to his two sons, Ephraim and John, annually during their respective lives.

3. To divide annually the net balance of the income “ equally, per stirpes and not per capita, between my five children, Delia, John, Ephraim, Rachel, and Esther, and the issue of Sarah and Fanny, deceased, and the issue of any other of the said children that may at any time have died leaving issue, until the death of the last survivor of said children, ...» the principal of said real and personal estate to be held until the death of every one of my children, and upon the death of the last survivor of them to be divided equally, per stirpes and not per capita, between the issue then living of my seven children.”

If the testator had died immediately upon the execution of his will, there would have been seven distributees entitled to share in the division of the net income, if his wife’s life-estate was not in the way, viz., five living children, and living issue representing two children then deceased. Delia died between the date of the will and the death of her father, leaving «issue living. The distributees, if ascertained as of the time of the testator’s death, would still have been seven, viz., four living children, and three not living, represented by living issue. In 1890, John died, leaving no issue, and the present controversy is over the destination of the share that would have heen paid to him if living. The Orphans’ Court held that he took a vested estate, not for his own life, but for the life of the last survivor of his brothers and sisters, and awarded his share to his personal representative. Is this a correct interpretation of the will?

An examination of the several provisions of the will shows that the intent which dominates the instrument is to preserve the entire estate for the grandchildren, and to make division among them per stirpes, on the death of the last surviving child. In the meantime he provides for his wife and children for their lives. Subject to the wife’s life-estate and the yearly payments to Delia, Ephraim, and John, the trustees are to make an equal division of the net income, each year, among all the objects of the testator’s bounty. These are to be ascertained at each annual distribution by a formula which the testator provides. The trustees are to have regard, in the first place, to the five children named in the will as living; in the next place, to the two children named as deceased, and represented by living issue; then, last, to “ any other of said children (living at date of will) that may at any time (before a given distribution) have died leaving issue.” The distributees thus ascertained will consist of two classes, viz., living children of the testator, and living issue of deceased children taking in the right of the parent, or per stirpes.

At the death of the testator, the first of these classes was four in number; the other, three; — in all, seven. When John died leaving no issue, he fell out of the first class, and he was not represented in the second. His life-estate fell in, and the distributees were reduced in number to six. The distribution being made annually, per stirpes, whenever a stirps falls out the share falls in, and the number of distributees is diminished. This mode of distribution does not disturb the holding of the court below that each child living at the death of the testator took a vested interest in the income, but reduces his interest to an estate for his own life. This effectuates the purpose of the testator. It provides for his own children while they live, and it secures his estate to his grandchildren without loss, when the event upon which their right to take as absolute owners shall happen.

We do not find the question presented in this case to be squarely ruled by any of our own cases to which our attention has been called. It is another illustration of the maxim that every will must be construed in the light which its provisions throw upon the intention of the testator.

The decree of the court below is reversed, and the record remitted, that distribution may be made in accordance with this opinion.