Gallagher's Estate

52 Pa. D. & C. 660, 1945 Pa. Dist. & Cnty. Dec. LEXIS 126

Opinion

Sinkler, J.,

The exceptions relate to awards of principal and income based upon the find- ■ ing of the auditing judge respecting the direction in the will that the share of any child dying without issue “shall be distributed among the survivors of my said nine children”. ■ He holds that the survivors are to be ascertained as of the date of testator’s death, not at the date the trust, terminated. He awarded to the personal representatives of those who survived testator but died before the trust terminated their respective shares of the estate. His conclusion is correct.

Among the cases relied upon by the auditing judge is Nass’ Estate, 320 Pa. 380. An appeal was dismissed from the dismissal of exceptions to my adjudication, reported in 22 D. & C. 604. The opinion of Lamorelle, P.J., is to be found at page 606. Therein are cited the decisions which enunciate the canon of construction applicable to such cases as the present: That in the absence of controlling evidence of a different intention the survivorship will be taken as referring to the death of testator. The auditing judge is correct in his conclusion that no such evidence exists in the present case.

The exceptions áre dismissed and the adjudication is confirmed absolutely.