Wenrich's Estate
Wenrich's Estate
Opinion of the Court
Opinion by
In the earlier paragraphs of his will the testator arranged for the conversion of all of his property, real and personal, into money. In the thirteenth paragraph he clearly declares the manner in which the fund was to be distributed and names each individual person who was to be a beneficiary in such distribution. They were his
Upon the death of any daughter, one of two possible situations would arise. She would die leaving children (issue) surviving her, or she would die without such issue. If she died leaving children, those children would clearly, under the will, take the unconsumed portion of the principal of her legacy. If she died childless or without issue, the following concluding clause of the fourteenth paragraph of the will became operative: “And in case if any one of my said children should die without any heirs of his or her blood, then in such case his or her share I deyise to be equally divided among my other children.” Was this a bequest to a class, the individual members of which were not in the contemplation of the testator and could not be ascertained until the death of one of his children? Or was it a bequest over to the surviving individual children whom he had just named in the previous paragraph of his will or their lineage? The learned judge of the Orphans’ Court answered the second question in the affirmative, and, notwithstanding the argument so earnestly advanced by the able counsel
The situation which arose under this will on the death of one of the daughters, leaving no issue to survive her, is fully stated in the following language cited with approval in the recent case of Packer’s Est. (No. 2), 246 Pa. 116: “The law leans in favor of vested rather than contingent estates, and will not suffer the inheritance to be in abeyance, if by any reasonable construction of the will, this can be avoided; where a future estate is limited to ascertained persons in being, subject to a prior gift to others unborn or unascertained who may never come into existence, the estate so given is regarded as vested subject to be divested.”
.We are of opinion the Orphans’ Court committed no error in making the decree appealed from.
Decree affirmed.
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- Will — Vested and contingent estates — Vested estates subject to be divested. The law leans in favor of vested rather than contingent estates, and will not suffer the inheritance to be in abeyance, if by any reasonable construction of the will, this can be avoided; where a future estate is limited to ascertained persons in being, subject to a prior gift to others unborn or unascertained who may never come into existence, the estate so given is regarded as vested subject to he divested. Testator directed that the proceeds arising from the sale of his real and personal estate should be divided equally among his seven children naming them, and their heirs, share and share alike. In the next clause of his will he directed that the shares going to each of his three daughters,' naming them, should be held in trust for her sole and separa+e use, but with the privilege to consume a portion of the principal if necessary for support and maintenance. He then directed as follows: “Immediately after the decease of any of my said daughters, I give, the whole of the residue if any of their shares, to their heirs, if any, and share and share alike. And in ease, if any one of my said children should die without any heirs of his or her blood then and in such case his or her share, I devise to be equally divided among my other children.” One of the daughters died unmarried and without issue. Held, that the gift over to other children after the death of one of them was a gift to the children named in the will as individuals, and was vested at the death of the testator subject to be divested if the daughter left children surviving, and that as the daughter who died, left no children, testator’s children who survived him and the legal representatives of such as were deceased, took the deceased daughter’s share.