Edmunds Estate

97 A.2d 75, 374 Pa. 22, 1953 Pa. LEXIS 363

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 1953
• Docket: Appeals, 127 and 171
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearne,

In this will construction we are required to determine whether a gift in remainder is vested or contingent. The court below, one judge dissenting, held that the remainder was contingent.

Testator’s residuary estate was placed in trust to pay the net income to three named children for life and upon the death of each named child: “to convey, transfer, assign and pay over the principal of one-third of my residuary estate to my right heirs at law under the terms of the intestate law of Pennsylvania, absolutely, clear of trusts.”

The share in litigation is that of testator’s daughter, Adeline E. Proriep, who died August 4, 1950, a widow, and without issue. She married Charles Neeld subsequent to testator’s death, and such husband predeceased her.

It is to be initially noted that the gift in remainder is necessarily implied solely because of the testamentary direction “to convey, transfer, assign and pay over.” These words constitute what is known as a “pay and divide” case. The rule has been repeatedly quoted, and is what was accurately stated by Chief Justice Gibson in Moore v. Smith, 9 Watts 403, 407: “. . . where there is no separate and antecedent gift which is independent of the direction and time for payment, the legacy is contingent; and it seems to be as well founded in reason, as rules of interpretation usually are. Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be.”

This rule is also stated by Josiah W. Smith, an English barrister, in his scholarly book “Executory Interests” (1845), sec. 314, p. 150: “(1) It must be carefully noticed, that where there is no gift but in a direction to pay or transfer or divide among several persons, at a future period; though the future period is annexed to the payment, possession, or enjoyment, yet it is also annexed to the devise or-bequest itself. For, in this case, the direction to pay or transfer or divide, constitutes the devise or bequest itself; and, therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment.”

The antecedent gifts of income were not in any sense gifts of principal and consequently did not constitute an “antecedent gift which is independent of the direction and time for payment” within the meaning of the rule: Moore v. Smith, supra; Rickenbach Estate, 348 Pa. 121, 34 A. 2d 527; Wilson Estate, 369 Pa. 583, 87 A. 2d 648.

As the testamentary provisions concerning the disposition of the remainder clearly constitute a contingent gift, there is no necessity to consider whether, following a life estate, a gift to heirs or next of kin relates to those ascertained as of testator’s or the life tenant’s decease, and the application of the Act of June 29, 1923 P. L. 914, 21 PS 11.

This case is closely analogous to Wilson Estate, supra. The learned opinion of Judge Hunter for the court below so comprehensively and accurately states the law and its application to the present case that it is unnecessary for us to amplify his opinion.

Decree affirmed at cost of appellants.