Carstensen's Estate , 196 Pa. 325 ( 1900 )

Opinion by

Mb,. Justice Mestbezat,

The clear and elaborate- opinion of the learned president of the court below, thoroughly discussing all the questions arising in the case and citing numerous authorities to sustain- his position, relieves us from an extended review of the questions involved in this controversy. Many cases in our own and other states might be added to those cited by the court which clearly show the correctness’of his conclusions, but it is unnecessary.

The testatrix devised and bequeathed her entire estate to her executor in trust to convert the same into monej^ and to pay the interest and income thereof to her husband, Edward Carstensen, during his life. The -will then provides as follows: “And from and after the decease of my said husband, I give, devise, and bequeath the whole estate then remaining to my brothers and sisters; the child or children of any of my said brothers or sisters who may then be dead, to take and receive the share that his or their parent would have taken if living.”

The learned counsel for the appellant contends that the ulterior bequest to the brothers and sisters was to them as a class, and ivhile conceding the rule to be that prima facie the members of a class are to be ascertained at the death of the testatrix, yet he maintains that the language used in Mrs. Carstensen’s will is sufficient to overcome that presumption and to show that at the time of distribution is the date at which those entitled to her estate are to be determined. He therefore insists that the interests of the legatees did not vest at the death of the testatrix. We are, however, by no means convinced that his interpretation of Mrs. Carstensen’s will is the right one. The brothers and sisters of the testatrix were in esse at the date of her death, and the time when they were to come into possession of their legacies was fixed by the will, to wit: at the death of Edward Carstensen, the life tenant. The bequest is not qualified, but is absolute and immediate. There was no condition precedent attached to the gift which the legatees were required to fulfil prior to receiving the bequest. The time fixed by the testatrix for the enjoyment of the ulterior interests in her estate was not annexed to the legacies themselves and was in no sense a part of the description of the objects of her bounty. The language of the will, under the well recognized rules of construction, does not support such a contention. It is evident that the only object of the testatrix in the postponement of the distribution of the estate among her brothers and sisters was the desire she had to give her husband a life interest in it. This is quite apparent from the whole will. We think, therefore, that the interest of the brothers and sisters was not contingent upon their surviving the life tenant, but that it vested at the death of the testatrix.

We cannot agree with the appellant that the condition upon which the legacies were liable to be divested or defeated was simply the death of the legatees in the lifetime of Edward Carstensen, the life tenant. The divesting contingency was not merely the death of the legatee during the continuance of the particular estate but it was his or her death during that period leaving a child or children. The testatrix in her will makes an absolute bequest to her brothers and sisters and then is added the clause: “ the child or children of any of my said brothers and sisters who may then be dead, to take and receive the share that his or their parent would have taken if living.” •There is no provision made in the will for the disposition of the interest of any brother or sister who might die prior to the death of the life tenant without leaving a child or children. In such an event, there is no divestiture of the title acquired by the general bequest. But should any of the brothers or sisters die leaving children during the life tenancy, the effect would be, under the clause we have just quoted, to divest the interest the deceased parent acquired under the preceding clause of the will. The substituted legacy would thus become complete on the happening of this contingency and the interest bequeathed to the deceased parent would vest in his surviving child.

The views above expressed are fully sustained by the authorities cited in the opinion of the court below and they need not be repeated here. They are likewise confirmed by the application of the well established rule that a legacy will be regarded as vested rather than contingent unless the language of the will indicates that the testator had a different intention. There is nothing whatever in Mrs. Carstensen’s will that affords any ground for the contention that she intended only those of her brothers and sisters and children of a deceased brother or sister who survived her husband, to participate in the distribution of her estate. On the contrary, the language used, we think, conveys a different intention and, as interpreted by the well known rules applied in the construction of wills, leads to the conclusion that the interest given the primary legatees in the will in hand was intended to be absolute and indefeasible, subject to be defeated only by the death of the legatee leaving children during the life tenancy of the first taker.

It results from what we have said that on the death of William Maurice Johns, his interest in his sister’s estate was divested and such interest was thereupon immediately vested in his son, Willie M. Johns, who was his father’s only child and in esse at his father’s death. The son having died without issue, the interest in Mrs. Carstensen’s estate acquired by him during the tenancy of Edward Carstensen was, after the latter’s death, payable to the son’s legal representative. The interest of Samuel Dunn Johns who died without issue during the continuance of the life tenancy, was not divested and hence, in this distribution, must be awarded to his administrator.

The several assignments of error are overruled and the decree of the court below is affirmed.