Minter's Appeal

40 Pa. 111, 1861 Pa. LEXIS 251

• Court: Supreme Court of Pennsylvania
• Decided: July 24, 1861
• Status: Published

Opinion

The opinion of the court was delivered,

by Lowrie, C. J.

We cannot doubt that the Act of 6th May 1844, § 2, Pamph. L. 564, saves this bequest to the testator’s sister from being void, though she was dead when the will was written, having left children that survived the testator. This interpretation of the law is so just, and presents itself so naturally, that we need waste no words about it. No amount of verbal criticism can make it clearer, but, as is usual in such cases, would only darken and confuse the thought.

Then how shall we interpret the bequests ? The testator says “ share and share alike among the children of my brother Adam, and the children of my brother Martin, and to my sister Barbara;” and by thus expressing himself, he seems to make three classes, and three equal shares. In another clause, he leaves his thought more doubtful. What then can we do, but resort to the usual distribution of the law for an analogy to help us ? When we find a man distributing his estate, in whole or in part, among his next of kin, and he leaves the proportions in which they are to take doubtful, it is quite natural for us to suppose that he had the statutory or customary form of distribution in his mind, and to interpret his will accordingly. This would classify the legatees as he seems to have done, and as the court below did, and allows the three classes to take as their parents would have done: thus they themselves take by a quasi representation and per stirpes. If he méant that his nephews should be each equal to his sisters, the word each would have made his meaning clear. The classification being made in the will is not changed by the death of his sister. Her children take her place.

Decree affirmed, at the costs of the appellants.