Elsbree Estate

Opinion by Mr. Justice Allen M. Stearne, This appeal relates to the construction of a will. The question is whether the remainder is vested or contingent. The court below held the remainder to be contingent. This appeal followed. Alexander C. Elsbree, the testator, died April 2,1896, leaving to survive him as his heirs and next of kin a daughter, Jessie Allen, who was married and had a son, Alexander E. R. Allen. Under the provisions of his will, dated July 18, 1894, his residuary estate was devised and bequeathed to named trustees to pay therefrom, under spendthrift provisions, such sums of money as the daughter might need for “the comfortable support and maintenance of herself and children” for the term of her life. Testator further provided for the education of his daughter’s children “if she leave child or children to survive her.” The controlling dispositive words of the will relating to the remainder are: “At *496 the death of my said daughter Jessie Allen I give, bequeath and devise unto her child or children . . . the residue and remainder of my estate'. . •. to be paid and transferred unto said child or children "upon their becoming twenty-one years of age or as soon thereafter as can be done without injury to my estate. ... In the event of my daughter . . . dying without child or children . . . or having a grand child or grand children . . . who shall live and survive to the age of twenty one years then and in such event I direct all the residue and remainder of my estate ... to' be distributed paid to and taken by my heirs under the intestate laws of the State of Pennsylvania they to take and hold the same as my said estate would pass and be taken according to said laws under like circumstances and conditions the same as if I had made no will and testament. But if said Jessie Allen shall have more than one child and anyone shall live to become twenty one years of age or if she shall have more than one grandchild and anyone shall live to become twenty one years of age then my estate shall vest and become absolute in such, child or all of such children as the case may be then and at that time alive and surviving or such grand child, or children alive and. surviving upon becoming twenty one years old.” Testator thus provided that any interest passing to either grandchildren or greatgrandchildren should only "vest and become absolute” if they were alive "at that time”, to wit: at the date when they attained twenty-one years' and were "surviving” at the decease of the daughter of testator. The daughter survived testator and died intestate June 7, 1947. Her.son, Alexander, over the age of twenty-one years, predeceased her on April 7, 1933, leaving no issue but survived by a .mentally incompetent widow. *497 ■The will .specifically provided that , in the event of the, death of the. daughter without surviving .children or grandchildren — and there were none — the remainder should pass to the testator’s heirs under the intestate law. It was not until the daughter died that the remaindermen could be ascertained. If the daughter was survived by child or children they would take; if no child or children survived, the grandchildren took; and if there were neither children nor grandchildren surviving the life tenant, the .remainder was passed to testator’s heirs under the intestate laws. A remainder is always held to be contingent when it is limited to take effect on an event which may never happen: Kountz’s Estate (No. 1), 213 Pa. 390, 62 A. 1103; McCreary Trust, 354 Pa. 347, 352, 47 A. 2d 235. It was not until the daughter’s death that it could be ascertained whether or not she was survived by children or grandchildren. As she was not, the contingency contemplated by testator occurred. In that event testator directed that his estate should be distributed according to the intestate law. Any doubt as to the time when the heirs and next of kin should be determined — i. e. at testator’s death or the death of the life tenant — was resolved by testator himself when he said in the named contingency that his estate should be distributed as if “[he] had made no will and testament.” This could only mean at testator’s death. The decree is affirmed at cost of appellant.