Castner's Appeal

Mr. Justice Sterrett delivered the opinion of the court, May 5th 1879. Lewis Ryan died in 1850, leaving three daughters, Ann, Martha and Mary, and five grandchildren who were the children of his deceased daughter Catherine, wife of Philip Reilly. After making specific disposition of a part, the testator gave all the rest, residue and remainder of his property, real, personal and mixed to trustees, with full power and authority to sell, invest and collect the income [490] and interest thereof; in trust, however, to divide the said income and interest into four equal shares or parts; to pay one full and equal part thereof, half yearly, to each of his daughters above named, during life, for her sole and separate use, and the remaining fourth part to his son-in-law, Philip Reilly, for the maintenance and education of his grandchildren above named, until they should severally attain the age of twenty-one years; then in further trust, to pay to each grandchild the principal or capital sum on which he or she had been receiving the income and interest, with the proviso that if any of these grandchildren should die under the age of twenty-one, leaving lawful issue, the share of such grandchild-should go to the issue, and if any of them should die under age and without issue, the survivors should take his or her share. The one-fourth of the residuary estate was thus given, first in trust and in the end absolutely, to the children of Mrs. Reilly, so that in no contingency could thfe testator’s daughters, under the provisions of his will, participate in that part of his residuary estate. The trusts, as to the other three-fourths, for the benefit of his daughters, were materially different. After providing as above stated, for the payment of one-fourth of the interest and income to each semi-annually during life, he disposed of the principal or capital sum' from which such income and interest were derived, as follows: “ from and immediately after the death of either of my said daughters, in trust, to pay, assign, transfer and set over the principal sum on which such daughter, so dying, was entitled to receive the income or interest, to such person or persons and for such uses, interests and purposes as such daughter, by any last will or testatment or instrument of writing in the nature of a last will or testament, notwithstanding her coverture, may direct, limit and appoint to receive the same; and for want of any such last will and testament, then to pay the said principal sum to the child or children of such daughter in equal shares or proportions ; but if either of my said daughters shall die ' without leaving issue, and without any last will and testament, then it is my will and desire that the share or portion of such daughter shall be continued under the same trusts as hereinbefore provided, for the use and benefit of my surviving children in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.” The testator’s daughter Martha died in 1865, without issue, and without having exercised the power of appointment with which she was clothed by her father’s will, and the present contention has arisen in regard to the proper construction of the italicized portion of the residuary, clause above quoted. The children of Mrs. Reilly, appellants, claim that they are entitled to participate in the share or portion of the residuary estate which was held in trust for their aunt, Martha Ryan; while, on the other hand, the appellees contend that, by the terms of the will, they are excluded, and have no [491] interest therein; that the principal or capital sum, on which Martha received the interest or income, was continued for the use and benefit of the testator’s surviving children, in equal proportions, under the same trusts that are provided for them in the previous part of the residuary clause. The auditor and the Orphans’ Court held that upon Martha’s decease, without children and without having exercised the power of appointment as- to the principal, the right to receive the income in equal proportions vested in her surviving sisters Mary and Ann, subject to the life-interest, of the latter under Martha’s will, and that therefore each was entitled to appoint one-half of the principal by will. It appears to us that this is the only construction of which the clause under consideration is fairly susceptible. If the testator had omitted the phrase “ for the use and benefit of my surviving children,” or had added thereto the words “ and grandchildren,” or if we were at liberty to construe the word children as including grandchildren, there would be no difficulty in giving effect to the will in favor of appellants; but there is nothing in the instrument that would justify us in striking out or supplying these words respectively, or in enlarging the meaning of the word children so as to embrace grandchildren. It is the well-established rule of construction in this state, as well as elsewhere, that the word children in a will does not include grandchildren, unless it appears from the context to have boon so intended by the testator, or such meaning is necessary to carry out his manifest intent, neither of which appears to exist in this case. Nor is the meaning of the will rendered so doubtful by antagonistic clauses or the use of ambiguous language as to justify a departure from the ordinary rule, requiring a testamentary paper to be construed according to its natural and ordinary import. If the will contained such clauses, or if such ambiguous language was employed as to render its meaning doubtful, it would be our duty to adopt that construction which would, as nearly as practicable, bring about equality of distribution, llut we fail to find in this will any such inconsistency or ambiguity as would justify the application of this principle. Upon the happening of the contingency, which occurred on the death of Martha, the capital representing one-fourth of the residuary estate was directed to be continued in trust. For whose benefit was the trust continued ? The will says, “ for the use and benefit of my surviving children.” Those are both natural and apt disposing words, and the only words in the sentence under consideration that are really descriptive of the beneficiaries. Then follow the words “in equal proportions,” indicating how the surviving daughters are to take. Then again when we inquire what was the character of the trust under which Martha’s share of the principal was to be continued, the language of the will furnishes the answer, “under the same trusts as hereinbefore provided.” The surviving [492] daughters are thus made the beneficiaries, and the latter words are descriptive of the trust created for their benefit; and the concluding phrase of the sentence, “ in the same manner as hereinbefore directed as to the residue of my estate,” are further descriptive of the trust and its incidents. These words would seem to indicate that as the original portions of the principal, the income or interest of which his daughters were to receive respectively, were subjected to the power of appointment vested in the daughters, so the quarter of the principal added in equal proportions to the shares of each of the surviving daughters should serve the purpose of increasing their income, and in the end be subject also to the power of appointment before given them respectively. The difficulties attending the construction contended for by the appellants have been so fully pointed out by the learned auditor that it is unnecessary to add anything thereto. It may be that the testator intended that his grandchildren, the appellants, should, together with his surviving children, be beneficiaries of the continued trust, but if he did, he failed to use language expressive of such intent; on the contrary, we think the language employed evinces a contrary intention. Decree affirmed, and appeal dismissed at the costs of the appellants.