Vance's Estate
Vance's Estate
Opinion of the Court
The opinion of the learned judge of the orphans’ court who passed on and sustained the exceptions to the adjudication of the auditing judge correctly announces the law by which this will must be interpreted. “ A will must be construed so as to avoid a partial intestacy unless the contrary is unavoidable: ” Appeal of Boards of Missions, 91 Pa. 507. If the interpretation placed upon this will by the learned auditing judge should prevail, then should Jane E. Robinson die without issue, the fund for distribution would not be subject to distribution by the will, but would go to the next of kin under the intestate laws.. The interpretation put upon the will by the court below not only avoids intestacy, the result sought by law, but secures equality- of distribution among the children of testatrix. And this is the very substance of the ruling of the present chief justice in Woelpper’s Appeal, 126 Pa. 562, and the other cases cited by appellant.
This correctness of the opinion of the orphans’ court is confirmed by the fact that Auditing Judge Hanna, after it was rendered, concurred in it.
The decree of the orphans’ court is affirmed.
Reference
- Cited By
- 14 cases
- Status
- Published
- Syllabus
- Will—Construction—Avoidance of intestacy. A will must be construed so as to avoid a partial intestacy unless the contrary is unavoidable. Testatrix gave the residue of her estate to trustees to pay over the income thereof to her seven children for life. She further directed as follows: “ All my children to share and share alike and from and after the decease of any of them, my children, the equal share of the principal such child may be entitled to be paid over to and equally among any child or children she or he may have as they arrive at lawful age. Should any of my children die without lawful issue then the share of the child deceased to be held in trust by my executors hereinafter named for the surviving children on the same terms heretofore expressed and the dividend, interest or increase thereof to be paid over equally in the manner heretofore provided for. And on the death of any other child leaving issue the principal of such shall go to and be divided among such issue equally as they may arrive at lawful age. The issue of any of my deceased children to have such share .as the parent would have been entitled to if living.” Held, that the word “ surviving ” as used in the will is to be taken to refer to the children surviving at the time of the death of the testatrix, and not to refer to children surviving at the death of a life tenant.