Mengel's Appeal

The opinion of the court was delivered, March 18th 1869, by Thompson, C. J. The testator, Henry Mengel, deceased, bequeathed the one-seventh of his estate, to be reduced to personalty after the death of his wife, to his daughter, the wife of Daniel Christman. But the daughter dying before her father, by a codicil to his will he bequeathed in general terms the share he had given to his daughter to her only child, the appellee, his grandson, adding thereto these words: “ except in ease he, the said Mathias Christman, should die without lawful issue,” then the said legacy to be divided among “my children or their legal representatives.” It is on the supposed force of these words of limitation that the appellants claim that Matthias Christman took but a life interest under the will of his grandfather in the share decreed to< his mother, and that he is not entitled to the legacy without security for those in remainder. As the bequest to his mother was an abso [250] lute gift of the seventh of the testator’s estate, so would it be to the son, unless the words used cut it down to a less interest. The distinction between the bequest and others referred to by the counsel for the appellants, passed upon in the cases cited by them, in which the words “dying without issue” occur, although tolerably nice, does exist. Emma Myers’ Appeal, 13 Wright 111, and Sheets’ Estate, 2 P. F. Smith 257, may represent this class, and the difference is two-fold, viz.: in an express bequest of a life estate or interest, followed by these words, and the appointment of a trustee to effectuate the intention of the testator. In such circumstances a life interest has been thought to follow inevitably. I will not say that this has always been declared as the consequence of such provisions in a will, but it must have been taken for granted. We have a case in point, where, like this bequest, it was absolute on the part taken, and without a trustee, followed by super-added words of limitation used in the event of dying without issue; I mean Amelia Smith’s Appeal, 11 Harris 9, decided in 1854, in which the distinction must have been taken. It was there held, that the words were words of limitation, importing an indefinite failure of issue, and which, if applied to a devise of realty, would have given an estate tail. Predicated of this, it was held that the bequest being of personalty, it passed the absolute property to the legatee. Many authorities are cited in the opinion of the court, to show that words of entailment of realty when applied to a legacy conferred absolute property on the legatee. This was but following out the rational idea that it is not to be presumed that a testator intends that personal property is to be tied up in any way to await a failure of issue indefinite. That case has not been shaken by any subsequent decision that I am aware of. On the contrary, it has been cited in several of the more recent cases, and among them are, Bedford’s Appeal, 4 Wright 18, and Matlack v. Roberts, 4 P. F. Smith 148. Amelia Smith’s Appeal was followed by the learned judge below, and we think rightly. This ruling gave to the appellee what the testator designed for his mother, an absolute bequest, and he will take it, of course, without security for the benefit of possible issue. The decree of the Orphans’ Court must therefore be affirmed. Decree affirmed, and appeal dismissed at the costs of the appellants.