Reilly's Estate , 200 Pa. 288 ( 1901 )

Opinion by

Mr. Justice Potter,

The controversy in this case arises upon the construction of two clauses in the will of the decedent. The twelfth clause, which is as follows :

“ I give and bequeath to the children of my late brother, John, now deceased, the annual interest of forty thousand dollars, to be divided between them, share and share alike, during their lives, and, upon the death of each one, I give one full share to his or her child, or children, share and share alike, the issue of any deceased to take the share of the parent.”

And the twenty-first clause, which is:

“ My executors are to define the provisions of this, my will, and their decision shall be final and conclusive upon all matters in it. They will construe “ child or children ” to be lawful issue, and in the sixth, eighth, ninth, eleventh and twelfth clauses, they will construe each in this manner. If one or more of the children of my brother J ohn should die without lawful issue, the bequest of forty thousand dollars shall be equally divided among the surviving children of my said brother, J ohn.”

Under the twelfth clause, above quoted, a trust was created by the decedent for the benefit of the children of his brother John. Provision was made for the payment of the annual interest upon the sum of 140,000, to a class, viz: The children of John Reilly, and upon the death of each one of that class, one full share was given to his or her child, or children. The words “ one full share ” as here used, evidently meant one full share in the principal of the fund. Otherwise, there would be intestacy as to the principal. The intent to carry the corpus, or principal, over to others, clearly appears, and in such case, the words of the will must be permitted to have their proper force: Bentley v. Kauffman, 86 Pa. 101.

The children of John Reilly as a class, were the objects of the testator’s bounty under the twelfth clause, and only such as were in being, at the time of the testator’s death, could take. These, as a class, took the income, with remainder over, of the principal sum, to the issue of those comprising the class. This was the status, in so far as the twelfth clause was concerned. But the estate in remainder, so provided, was, by the language in the twenty-first clause, made subject to being defeated, by any member of the class dying without issue. A new contingency was thus imposed which prevented the remainder from becoming a vested one, so long as the contingency was liable to happen. Authority for this proposition is found in McBride v. Smyth, 54 Pa. 248, in the language of Justice Strong, who said:

“ This is not a mere postponement of the time of enjoyment. It is a selection of individuals from a class to be donees of a right; a description of persons, not a regulation of interest given. It is impossible to admit that a gift to such a number of persons as may meet a defined description, is a gift to all the persons, whether they meet the description or not.”

The rule of legal construction, as well as the testamentary intent in such cases, is well stated in Smith on Executory Interests, page 281. It is said: “ Where real or personal estate is devised or bequeathed to such children, or child, or individuals, as shall attain a given age; or the children who shall sustain a certain character, or do a particular act, or be living at a certain time, without any distinctive gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person. For until the age is attained, the character is sustained, or the act is performed, the person is unascertained; there is no person answering the description of the person who is to take as devisee or legatee.”

The contingency, upon the happening of which, the trust created, by the twelfth clause was to cease, was the death of one ormore of the children of John Reilly, without issue. That event has happened in the death of William H. Reilly, without issue. Until the death of a member of the class, without issue, the gift in remainder created by the twelfth clause of the will, was contingent. But, with the happening of the event, contemplated in the twenty-first section, came in force the gift of $40,000, which, in the words of the testator, “ shall be equally divided among the surviving children of my said brother, John.” In clause twelve, reference was made to a share in the principal sum. But, in the twenty-first clause, the gift is not of a share in, but of the whole bequest of $40,000, to be equally divided as directed. We are unable to agree with the learned court below, that, in order to give effect to the intention of the testator, it is necessary to interpolate the words “ his share in ” so as to make the clause of the twenty-first section read: “If one or more of the children of my brother John, shall die without lawful issue (his share in) the bequest of forty thousand dollars .shall be equally divided among the surviving children of my brother John.”

The wording of the twenty-first clause, if considered by itself, shows the manifest intention of the testator, to limit the period of the trust created in the twelfth section; • this limitation to be dependent upon the contingency of the death of one of the class, without lawful issue. In which event the principal sum was at once to be made payable to those, who, theretofore, had been receiving the income. The testator had a perfect right to terminate the trust, upon "such a contingency, if he so desired. The language used by him is ample for the purpose. The meaning seems apparent and, as was said by our Brother Mitchell, in Woelpper’s Appeal, 126 Pa. 562:

“The question in expounding a will is not what the testator meant, but, what is the meaning of his words. By this it was .never intended to say that the testator’s meaning, when apparent, can be disregarded, but, that it cannot be got at aliunde, by what he may have meant, or even what, under the circumstances, perhaps he would have meant, but only by what he said.”'

And in Huber’s Appeal, 80 Pa.'848: “ When the meaning is clear, from language that is unmistakable, the instrument interprets itself.” ■

In Reek’s Appeal, 78 Pa. 432, Justice Shabswood says: “ All mere technical rules of construction must give way to the plainly expressed intention of the testator, if that intention is lawful. It is a rule of common sense, as wellras law, not to attempt to construe that which needs no construction.”

By the death of William H. Reilly, without lawful issue, the contingency contemplated by the testator has arisen; and the be■quest of $40,000, is distributable to the surviving children of John Reilly.

The jurisdiction of the court to determine the matter in controversy, was questioned in the trial below, by reason of the attempt of the testator to confer exclusive authority upon the executors to define the provisions of the will, and make their decision final and conclusive. The learned court below held that the orphans’ court had jurisdiction in this matter. No exception appears to have been taken to this ruling, and tbe claim does not seem to be strongly pressed, here.

We are clear that this controversy is properly here for adjudication. A testator may not deny to his legatees the right of appeal to the regularly constituted courts. Ample authority may be found for this statement in Mentz v. Armenia Fire Ins. Co., 79 Pa. 480, Rea’s Appeal, 13 W.N. C. 546, Cooley’s Cons. Lim. * 410, and Hoagland v. Creed, 81 Ill. 506, etc.

The argument of the learned counsel for the appellee is thorough and ingenious in justification of the interpolation of the additional words “ his share in,” as applied to the bequest in clause twenty-one. But we cannot concede the necessity for any such construction. We think the words of the clause are plain enough in themselves to be intelligible, and, therefore, under the authorities, nothing can be supplied by intendment.

The decree of the orphans’ court is reversed, and the record is remitted, that a decree may be entered in accordance with this opinion, awarding the fund óf $40,000, with accrued interest, to the children of John Reilly, now surviving, or their assignees.