Judges： Head, Henderson, Porter, Ready, Trexler, Williams
Filed Date： 4/21/1919
Status： Precedential
Modified Date： 2/18/2022
Opinion by
Henderson, J.,
The right of the appellant to participate in the distribution of the fund which is the subject of controversy arises from the following provision in the will of the testator : “Any balance remaining upon the completion of the aforenamed devises, I direct and order my Trustee to distribute and pay over share and share alike amongst and to any of my legal descendants then living the sons and daughters of my daughter Williamina Thudichum and Joyeuse Arnoys, my sons Nicholas and John Boulinger Lennig and none others.” There can be no doubt *479that final distribution of the estate was not to be made until after “the completion of the aforenamed devises.” Viewing the will as a whole there seems to be no other construction of this language than that it has reference to the interests thereinbefore given to the wife and children of the testator and the gifts for charitable uses. It will be noticed that the bequests to the University of Pennsylvania and Academy of Natural Sciences are to be paid after the decease of the wife and children and the “aforenamed devises” must include those given to the latter as well as the gifts to the institutions named. The balance remaining is not given to the children of the testator but to such legal descendants as might be living at the time of final distribution. Such survivors were the direct takers under the residuary clause. The time to which the testator referred was that when the preceding provisions of his will were complied with and final distribution was to be made. There was no gift to a whole class but to the survivors at a particular period. The uncertain event of survivorship therefore is descriptive of the legatee. Survivors alone sustain the character and answer the description stated in the residuary clause. It cannot now be certainly known who will become the beneficiaries under the bequest. There is, therefore, no present residuary gift. It must be held to be contingent because of the description of the person intended to take. The decisions in Mulliken v. Earnshaw, 209 Pa. 226; Roney’s Est., 227 Pa. 127; Day v. Thompson, 233 Pa. 550; Sternberg’s Est., 250 Pa. 167; and numerous other cases sustain the conclusion of the Orphans’ Court.