Lipman's Appeal

The opinion of the court was delivered by Lowrie, C. J. — Mrs. Lehman’s will gives certain specified property to a trustee for the benefit of her three sons during their lives, with remainder in trust for their children, if they should have any, and, if not, for each other. It gives other specified property to the trustee for the benefit of her three daughters, using the same words of remainder, and adding a separate use clause. Then it gives to the same trustee the residue of her estate for the use of all her six children, “ in the same way and manner, and under the same and like uses and trusts, as are hereinbefore set forth.” One of the sons died without issue; does his share of the residue go to the surviving brothers, or to the surviving brothers and sisters ? The very uncertainty of the meaning, as derived from the will, decides this question in favour of the brothers and sisters, and against the brothers by themselves: for whoever claims against the laws of descent, must show a written title, which we can, with satisfaction, decide to be sufficient. The rule of equality of descent to relatives of the same degree, is so just that the law adopts it when the law is to govern, and prefers it when the law is called upon to interpret. Besides this, we rather incline to regard the will as declaring this rule. In the first devises the sons and daughters are classed apart for enjoyment and descent. But in the one under consideration, they are all classed together to take one undivided residue together, with cross remainders or quasi cross remainders among them all, and we should need to insert words in order to divide [185] them here into two classes. The trusts in the previous clauses can easily be applied to the interests which are here given, and in a very plain way, reddendo singula singulis. The word “ respectively” may mean this. It certainly would seem very natural to say that the sons and daughters should take by classes, if such were +v,c intention to be expressed. Decree. — This cause came on for hearing at the present term, on the appeal of Mary A. Lipman, Hyman L. Lipman, Jas. Maull, Jr., and Louisa] E. his wife, and Anna A. Lehman, from the decree of the Orphans’ Court of Philadelphia county, and was argued by counsel, and in consideration thereof it is ordered and decreed that the said decree be reversed, and that the balance in the said court for distribution, $505.40, shall, after deducting costs, be equally distributed to the surviving sons and daughters of the testatrix, Mary C. Lehman; and the cause is remitted to the same Orphans’ Court, that this decree may be carried into effect.