Appeal of the Pennsylvania Co. for Insurances on Lives & Granting Annuities

Mr. Justice Gordon delivered the opinion of the court, January 29th 1877. Joel 0. Hilsee, by his will, dated May 29th 1856, proved at Philadelphia, June 9th 1856, devised and bequeathed all his estate, real and personal, to his executor, the appellant, upon trust to sell the same, and, after payment of his debts and a legacy to his wife, to divide the residue into four equal shares, and pay one to his son Charles; the remaining three he directed to be invested, one for his son Jos.eph, one for his daughter Hannah R., and the other for his daughter Sarah T.; each to have and enjoy the interest and income of his or her share during life, and, upon the death of either, he bequeathed the share of the decedent to his or her surviving children. But if either should die without leaving surviving children, or the issue of a deceased child or children; then lie directed the interest and income of the share of the decedent to be divided among the survivor or survivors of them, the said Joseph T., Hannah R. and Sarah T., and the issue of such as may be dead, leaving issue. We think it manifest the testator intended to dispose of the whole of these several funds, thus created for the -benefit of his three children. That he intended that his grandchildren, if any such there might be, should take the corpora of these funds, after the death-of their parents, is not doubtful. In case, however, either of his children should die without leaving issue living, at the time of his or her death, the survivor or survivors were to take the share of such decedent. What is this but a substitution of the parents for the children, on the happening of the contingency of there being [315] no children to take the corpus of the bequest ? The use of the words “interest and income” before the word “share,” does not alter the matter, for, were it necessary to fulfil the intent of the testator, they might be disregarded. But that by “interest and income” he really meant not only the products, but also the body of the share is obvious in this, that he makes the issue of such as may be dead co-legatees with the survivors of the interest and income of the share of the deceased. He thus puts the surviving, beneficiaries and the issue of such as may be dead in the same class, so that the estate which any one takes in the share thus falling to them, must bo similar to that of any other. We presume, however, that it will hardly be contended, that the estate which the issue of the deceased child or children would have taken, had there been any such, would have been other than absolute, and of the body of the bequest. Again, the testator directed that that part of his estate which he intended for Joseph, Hannah and Sarah, should be divided into three distinct and equal shares, and one allotted to each, to be enjoyed by him or her severally for life and then over to his or her child or children; therefore, when he directs that, in case either should die, without leaving surviving issue, the interest and income of his or her share shall be divided among the survivors, where are the words of qualification to be found, designed to restrain the extent and duration of such interest and income ? But if there be no such Avords, then the gift is of the produce of the fund in perpetuity, and hence a gift of the fund itself: Hellman v. Hellman, 4 Rawle 450. We cannot, therefore, agree Avith the learned judge of the Orphans' Court, that Joel C. Hilsee died intestate as to the body of either of said shares. And now, January 29th 1877, it is ordered, adjudged and decreed that the decree of the Orphans’ Court be reversed and set aside; that the costs of this appeal be paid out of moneys of the estate of Joel C. Hilsee in the hands of the executor, appellant; that the fund for distribution, after payment of said costs and reasonable expenses of said executor, accountant, be divided and paid out as follows, viz.: one-sixth part thereof to the administrator of the estate of Joseph T. Hilsee; three-sixths parts thereof to the administrator of the estate of Hannah R. Kaufman, and the remaining two-sixths to Leon Kaufman.