Ridgway's Estate

6 Pa. D. & C. 568, 1925 Pa. Dist. & Cnty. Dec. LEXIS 272

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: July 3, 1925
• Docket: No. 525
• Status: Published

Opinion

Henderson, J.,

Eliminating the annuity to the widow, who is dead, after giving an equal share of the income to each of his children, and creating a survivorship in favor of the remaining children, as to the share of income enjoyed by any child dying without leaving issue, the testator, upon the death of all of his children, provided as follows:

. . and upon the further trust, that my said Executors and their Successors, after the decease of my said children, shall be and stand seized and possessed of all the rest, residue and remainder of my Estate, real and personal, subject to the payment of the Annuity to my said wife, for life, herein-before provided for; and the said trust to that end, to and for the only proper use, benefit and behoof of all and every, my grandchildren born and to be born, their heirs, executors, administrators and assigns forever, in equal shares; such grandchildren however to take only the shares his, her or their parent (being my child) would have taken had I hereby given and devised my said residuary estate, subject to the said Annuity to my said wife and the trust aforesaid respecting the same, to my said children, their heirs, executors, administrators and assigns, in equal shares, and both the parents of such grandchildren had died, it being my will, however, that no distribution shall be made among my grandchildren of the capital or principal of my said residuary Estate coming to them as aforesaid, until after the decease of .my said wife, but that the interest and income thereof be paid to them by my said Executors until such decease.”

Upon the death of each child, his or her share of the corpus was awarded to their respective children. One of the children of the testator died without issue and his share of the income has been paid to the survivors and survivor who is now deceased. The exceptions challenged the distribution of this share of the corpus to the grandchildren per stirpes, and contend there was an indefinite gift of the income of the share of the child dying without issue to the last child to survive, and, hence, by the well-known rule, this is equivalent to an absolute gift.

The language of the will is not as clear as it might be, but we are of opinion that the testator’s intent may readily be gathered. Had he not provided that, upon the death of his children, his “executors . . . shall be and stand seized and possessed of” his estate “. . . to and for the only proper use and behoof of all and every, my grandchildren born and to be born, their heirs, executors, administrators and assigns forever, in equal shares, . . .” greater difficulty would have been presented.

The next clause of the will is not so clear — “such grandchildren however to take only the shares his, her or their parent (being my child) would have taken had I hereby given and devised my said residuary estate ... to my said children ... in equal shares, and both the parents of such grandchildren had died. . . .”

The intent of this clause is undoubtedly to direct that the division among the grandchildren shall be by stirps. When the testator said “had I given my residuary estate to my said children,” he intended thereby as if he had said “to my said children leaving children to survive.” This is made clear by the other phrase in the will, “and both parents of such grandchildren had died.” The intent of the will would then be that he gave his residuary estate to his grandchildren, they taking such shares as would accrue to them had he given his residuary estate to his children leaving children to survive.

We are of opinion that the intent of the will is reasonably free from doubt, notwithstanding the able presentation made on behalf of the exceptants.

The exceptions are dismissed and the adjudication is confirmed absolutely.