Billings's Estate , 268 Pa. 67 ( 1920 )

Opinion by

Mr. Justice Frazer,

Sarah M. Billings died in 1912, leaving a will in which she gave all her residuary estate “unto my nieces and nephews named to wit [naming them],.......share and share alike to be paid to them respectively” in the manner stated, with further provision, should any die before receiving his or her share, and without leaving children, the share of such deceased should become part of the residuary fund and go to the survivors. In a codicil testatrix revoked the residuary bequests made to a nephew and niece and directed the persons named should not share in the residuary estate and, in lieu of such modification, gave each of the two a stated sum of money. No reference being made to the disposition of the revoked shares of the residue, the court below decided such shares passed to the remaining residuary legatees and no intestacy resulted as to any part of the estate.

In considering the question raised we must bear in mind the well established rules that a codicil and will must be construed together, that the codicil revokes the will only in so far as inconsistent with the original writing and that it serves as a republication of the will as of the date of the codicil. The application of these principles to the present will would prima facie sustain the view that the gift of the remainder, instead of being to ten beneficiaries named, was to eight. This construction would permit both the will and codicil to stand as a whole without conflict in any part and avoid an intestacy as to the revoked shares. Appellant relies for a contrary interpretation upon the common law rule stated in Williams y. Neff, 52 Pa. S26, and Wain’s Est., 156 Pa. 194, to the effect that a legacy which fails, either by lapse or because void, becomes part of the residue; but if the legacy which fails is part of the residue it passes to the next of kin and not to the remaining residuary legatees, which rule, it was held in the last named case, applies equally where the gift is revoked by codicil.

Appellee answers this argument with the contention that the gift of the residuary estate was not a gift to individuals but a gift to the nephews and nieces as a class, consequently the revocation of the gifts of two of the members of the group merely had the effect of excluding from the class without taking from the others the right to participate in the whole as a class: McGovran’s Est., 190 Pa. 375.

A gift to a class has been defined as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or other definite proportions, the share of each being dependent for its amount upon the ultimate number: 40 Cyc. 1473. The members who are to constitute the class are to be determined at the time of distribution: Haskins v. Tate, 25 Pa. 249. The question whether a gift is to a class or to the individuals constituting a class depends, of course, upon the intention of the testator as indicated by the language of the will.

If, at the time of making the gift, the number of beneficiaries is certain and the share each is to receive is in no way dependent in amount upon the number who shall survive, it is not a gift to a class, but to the individuals, as, for instance, where the individuals are named and their shares specified: Sharpless’s Est., 214 Pa. 335. Even though the beneficiaries are named the gift may still be one to a class if it otherwise appears from the will that the testator so intended and that the enumeralion was merely for the purpose of fixing with certainty the members of the class: Sharpless’s Est., supra.

In the present case, while the beneficiaries are specifically named, there is a survivorship created in the event of the death of any one of them without children, and the plan of equal divisiou of the residue among the beneficiaries is carried out: Sharpless’s Est., supra (page 339). When testatrix executed the codicil she made no attempt to change the provisions of her will except to the extent specifically stated, which directed that a nephew and a niece should not share in the estate. Testatrix in so doing clearly indicated an intention to divide the residue among the remaining eight nephews and nieces and the survivor or survivors of them, if any died without issue. In our opinion these provisions are sufficient to overcome the effect of designating the beneficiaries by name and that testatrix intended them to take as a class. It follows that the exclusion of the persons named from the class had (he effect of increasing the value of the shares of the remaining members of the class.

The decree is affirmed. Costs to he paid by appellant.