Carrigan's Estate , 68 Pa. Super. 264 ( 1917 )

Opinion by

Henderson, J.,

The contention between the parties in this case arises out of the construction of a part of the will of James. Carrigan. The testator created a trust in favor of his wife for life and after her death in favor of his children and after the death of the survivor of them the estate to go to his grandchildren per stirpes. The controversy grows out of the following provision of the will: “Should any of my said children die unmarried and without lawful issue then the income share of such child deceased shall go. to my reutaining children for life and my grandchildren shall take such share of said deceased children as their deceased parents would be entitled to (the intention of this my will being that my wife enjoy the income of my estate during her life, that my children shall enjoy said income after my wife’s death for and during their lives and that my grandchildren shall get the corpus of the estate per stirpes and not per capita) The widow elected to take against the will and the remainder of the estate not thus disposed of is now subject to the provisions of the will which were to take effect at her death. One of the testator’s sons died in the lifetime of his father unmarried and without issue; another died in his lifetime leaving four children to survivé him; a daughter, Mary, died in his lifetime leaving two children surviving her, one of whom is the appellant. A son died after the death of the testator and his two children are still living. The controversy relates to the distribution of the income of the estate, the surviving children claiming they are entitled to all of it and the appellant claiming she is entitled to participate therein under the will of her grandfather. The Orphans’ Court held that the surviving children took the whole income, that conclusion being reached by the construction given to the parenthetic clause in the portion of the will above quoted. The will provides that the income of a child dying unmarried and without lawful issue shall go to the surviving children, but this does not include the income to be received by a child married and having lawful issue who may die. As to such share there is an implication of the testator’s intention that the children of a deceased child should take the parent’s share, such implication arising from the provision with respect to the income share of children dying without lawful issue living. If the testator had intended to give to the surviving children all of the income of his estate he would not have, made the special provision with respect to the shares of those'dying without issue. But the case does not depend wholly on this implication, as appears from the provision with reference to grandchildren who are to take such portion of the income as their respective parents would be entitled to. The subject of the whole period is “the income share” and the language quoted is sufficient to show an intention to place the children of a deceased child in the place of their parent. The provision of the will relating to this subject follows the disposition of the whole estate made in the preceding portions of the will. After he had disposed of all his property the testator taking into consideration the fact that his children would not all survive to the same time provided for the disposal of the income of those who would die unmarried and without issue, and in doing so took account of his grandchildren. The ultimate remainder was already disposed of by the clear terms of the will. “The income share” was the particular subject in the testator’s mind in making this provision. The income of children dying unmarried and without issue would, of course, go to the survivors. These survivors were the living children and the children of deceased children who are made by the will to stand in the place of “their respective parents.” We are not convinced that the parenthetic clause following the disposition of the income shares of children dying unmarried and without issue was intended to or does change the effect of that which precedes it. . It is by its terms a statement of the general scope of the will which was a life estate in the income to his wife and after her death the income to his children and after their death the remainder over to his grandchildren. There is here no evidence of a purpose to change the special provision with reference to the income shares of the children dying nor to take account of them. There was a complete disposal of the whole estate and the parenthetic clause only declares the general purpose of the testator. We think it clear that there is no express provision of the will under which the.surviving children of the testator are entitled to the income bequeathed to a child dying with issue surviving and if this view be correct the provisions of the will are more consistent Avith the construction Avhich places the children of the surviving son or daughter in the place of their parent Avith respect to the income estate. If the case Avere doubtful a construction should be favored Avhich Avould result in a distribution in conformity to the general rules of inheritance: Long’s Est., 228 Pa. 594; Lehman v. Lehman, 29 Pa. Superior Ct. 60. It is unnecessary to discuss the case at length. This has been done by the learned judges in the court beloAv. The conclusion of the auditing judge Ave consider to be the correct construction of the testator’s will.

The decree of the Orphans’ Court is, therefore, reversed and the record remitted with direction to make distribution in accordance Avith this opinion.