Mulliken v. Earnshaw , 209 Pa. 226 ( 1904 )

Opinion by

Mb. Chief Justice Mitchell,

The want of harmony in the cases dealing with the period to which the words “ then living ” or similar phrases, in a will, should be applied, arises- mainly from the artificial canon of construction that the period intended is presumed to be the death of the testator. The. canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. Like all artificial rules it had the constant tendency to become an arbitrary fetter instead of a mere instrument .for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature of things why the actual meaning of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract. But as wills very frequently affect the devolution of real estate and become part of the chain of title they acquire an importance which they would not have as temporary instruments of contract. Hence when certain forms of expression in wills have been given an interpretation and have got into the reports with that meaning and the draftsmen of other wills have followed them, they gradually assume the character of rules of property, which the courts will be careful in disregarding. Except so far as this consideration is a restraining force, there is no reason why the actual meaning of the testator should not be ascertained and enforced on the same lines as it would be in a contract, and the recent decisions contain frequent intimations that precedents in will cases are of little weight. Every will, said Chief Justice SharsWOOD in Fox’s Appeal, 99 Pa. 382, “ must be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction.”

In the present case there is no room for doubt as to the actual intent of the testator. His words are, after a devise to his widow for life, “ and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent’s share.” All these remainders are clearly contingent. No child takes a vested interest because until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit: those then living, and if he should die before then leaving issue such issue would claim directly in their own right under the terms of the will. That this was the time actually meant by the testator is so clear on the face of the will that it would not admit of contradiction by the presumption of a different intent under any rule of construction. But the case does not really involve the canon of construction relied on by appellant. It belongs to the class of Craige’s Appeal, 126 Pa. 223, where the rule is quoted approvingly from Smith on Executory Devises in this form : “ Where real or personal estate is devised or bequeathed to such children, or to such 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 distinct 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 rule is- again approved in the same form in Reilly’s Est., 200 Pa. 288 (304), and to the same effect is Raleigh’s Estate, 206 Pa. 451.

That is the exact situation in the present case. There is no person now answering the testator’s description of the persons who are to take, a child who has survived the widow, or the surviving issue of a child who has died before the widow, and it is altogether uncertain which if any of the persons now living may fulfil the description when the event shall happen which is to determine the contingency.

Judgment affirmed.