Mickley's Appeal , 92 Pa. 514 ( 1880 )

Chief Justice Sharswood

delivered the opinion of the court, February 16th 1880.

The able argument of the young gentleman who presented this case on behalf of the appellants — who has a hereditary title to legal ability and acumen — has failed to convince us that the learned court helow erred in the construction which they put upon the will of Joseph J. Mickley. He is sustained by some English cases which are not of authority with us, and besides, as the great object in the construction of every will is to arrive at the true intention of the testator and to carry that out, if not contrary to law, decision on the language of wills, are not to be too closely followed. It is very clearly settled, both in England and in this state, that if a bequest be made to a person absolute in the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, it shall be construed to mean death or death without issue before the testator. The first taker is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the contingency of death or death without issue at any future period within the rule against perpetuities without clear evidence of such an intent: Caldwell v. Skelton, 1 Harris 152; Estate of Mary Biddle, 4 Casey 59; Karker’s Appeal, 10 P. F. Smith 141 ; Fahrney v. Holsinger, 15 P. F. Smith 388 ; McCullough v. Fenton, Id. 418. In Jessup v. Smuck, 4 Harris 327, the general rule is recognised, though in that case the court, upon the construction of the whole will, thought the intention of the testator was very clear, that he meant death “without marriage,” at a period subse-quent to his own death. In the will before, us it is strongly contended that death without issue living at the death of the first taker evinces the same intention. But it is not easy to draw such an inference from those words alone. Mr. Smith, in his work on executory interests, maintains that where the gift over is not merely dependent upon death, but upon dying unmarried and without issue — the event will be construed to mean not a death generally at some time or other, but a death in the testator’s lifetime, if the fund or property itself, and not merely the interest or income, is given absolutely to the person whose death is spoken of: sec. 662. In the English cases a distinction is made between devises of realty. and bequests of personalty, which has not been recognised in this state. But taking the whole will we think there .is a very clear indication of the intention of the testator, that the distribution of his estate to the persons entitled should take place at the period of his own death, and not be postponed to a subsequent time. The share of either of his sons so dying without issue is to be divided among his other children, to his sons if living absolutely, and to his daughters, to be held in trust as provided in his will. Thus, while according to the construction contended for, the original share of the son would be held subject to .the executory bequest over, the accrued share would be held absolutely, while the accrued shares of the daughters would be held exactly as the original shares. Such a result was referred to and relied on as evidence that it was not the intention of the testator in Caldwell v. Skilton, 1 Harris 185. Says Mr. Justice Bell, “ besides that construction would render defeasible the original shares first taken under the will, while those which might accrue by the clause of survivorship would vest absolutely, a consequence certainly never contemplated.” Decree affirmed and appeal dismissed at the cost of the appellants.