Hauer's Estate , 16 Pa. Super. 257 ( 1901 )

Opinion by

Rice, P. J.,

According to the natural interpretation of the residuary clause, it would seem that the share of a legatee dying without issue would go to the brothers and sisters surviving him or her, and, in case of the death of any of them before the death of the testatrix, the heirs and legal representatives of such surviving brother or sister, who would take by representation. Under this interpretation the children of William H. Hauer, he having died before the date of the will, do not answer the description. But it is urged that, in order to avoid a construction which disinherits them, it is allowable to read the word “surviving” as meaning “other,” or to omit it altogether, in which case, says counsel, the issue of William would take by representation. The case of Lapsley v. Lapsley, 9 Pa. 130, which is supposed to give countenance to this construction, seems to us to fall short of sustaining his contention. As remarked in later cases that case was decided “ under its peculiar circumstances,” and because the conclusion that would be reached by interpreting the will according to the usual meaning of the word “ survivors ” would be (we now quote from the opinion) “ unsustained by the intention properly imputable to the devisor, who, in the absence of express direction or an equivalent implication, ought not to be suspected of a design to disinherit the issue of those who had fulfilled'the principal condition annexed to the gift. To avoid such a result the word ‘ survivors ’ in the connection in which it is here found, has been construed to mean ‘ others,’ so as to let in the issue of the first takers.” Even if, as is suggested hi the opinion of the learned judge of the court below, the case cited would be authority for a construction of the present will which would let in the issue of one of the first takers dying before the legatee dying without issue, it would not help the appellant’s case. In doubtful cases the courts favor that construction which, consistently with the words of the instrument, will result in a disposition in conformity to the general rules of inheritance, rather than one which will disinherit an heir at law. But we do not regard this as a doubtful case. It is only by assuming that the testatrix did not mean what her words mean, that doubt can be raised. But there is nothing in the context which warrants such assumption. Her “ actual, personal and individual ” intent is clear and must control: Tyson’s Estate, 191 Pa. 218; Thran v. Herzog, 12 Pa. Superior Ct. 551. It seems to be a case where the terse remark is applicable, “ It is a rule of common sense as well as law not to attempt to construe that which needs no construction: ” Reck’s Appeal, 78 Pa. 432.

The decree is affirmed and the appeal dismissed at the costs of the appellants.