Fitzwater's Appeal

Mr. Justice Trunkey delivered the opinion of the court, Jacob Fitzwater bequeathed one-fifth of the residue of his estate to his niece, and a like portion to each of his four nephews, except Jacob whose share is reduced $1000 with direction that said sum be paid to Frank. He directed that the shares of John, Charles and Jacob, shall remain in the hands of his executors in trust; that they pay to them the income and interest during their lives, and at the death of either to pay the share of such deceased unto his children should he leave any surviving, but if no child survives then to pay said share to his surviving brothers and sister, and to the issue of any that may be dead, such issue to take the parent’s share; “and provided further that should the said Frank Fitzwater, son of my nephew, Jacob Fitzwater, die without issue, then I order and direct that the money coming to him out of my estate at the death of his father, as hereinbefore provided, shall go to his uncles and aunt on his father’s side, or if any of them be dead then to their issue, such issue taking their parent’s share.” Jacob died, after the testator’s death, leaving an only child, said Frank, surviving. Frank claims that his father’s share is now absolutely vested in him, and, had not the auditor and learned judge of the Orphans’ Court held otherwise, we should unhesitat [146] ingly conclude that his demand is well founded. The five bequests first are made without condition. Then follows the trust provision for three of the legatees with direction that at the death of each his share shall be paid to his children if any survive. It is by virtue of this part of the will that the children of John, or Charles, or Jacob, become entitled to the principal sum; and it is this which entitles Frank to any portion of the testator’s estate. He takes precisely the same interest as is given to the children of John and Charles; and had Jacob left other children they all would have shared equally. If Frank were not the sole surviving child, the proviso would apply to the fraction he would then receive just as it now does to the whole. It declares that should Frank die without issue, the money coming to him, “ as hereinbefore provided,” that is as the child of Jacob, shall go to his uncles and aunt on his father’s side. Should he die leaving issue there is no bequest over to any one, not even to his issue or children. The executors are ordered to pay the money at Jacob’s death to his child — they are not authorized to hold it longer in trust. Jacob had right to the income of the money for life, at his death Frank takes the money itself. That is the difference, and, whatever the proviso really means, it is clear that it does not cast about the son the same trust as was thrown around the father. Where the intendment of the will is doubtful, the law leans in favor of an absolute estate; of the primary, rather than the secondary intent; of the first taker as the primary object of the testator’s bounty; and of a distribution conformable to the general rules of inheritance. The legacy to Frank is absolute, he is the first taker of the principal, the bequest over is in case of his death without issue. If it be inferred from the whole that the bequest is to Frank and his issue he takes the money absolutely : Amelia Smith’s Appeal, 11 Harris 9. The bequest is to Jacob for his life, then to his child, and in case of the latter’s death without issue to his paternal uncles and aunt. Strictly, this is within the rule given in Williams on Ex’rs 1261: “ If there is a bequest to one for life, and after his decease to A., and in case of A.’s death to B., the contingency is held referable to the lifetime of the first legatee ; and the bequest over takes effect in case A. dies during the continuance of the life estate; he takes absolutely, if he survives the tenant for life. And the rule is the same if there is a bequest to one for life, and after his decease to A., and in case of A.’s death without children to B.” See Mickley’s Appeal, 11 Norris 514. Most general rules cease to be applicable where it appears, from the whole will, that their application would frustrate the intention of the testator. This will carries clear expression of intention to give the entire property to two of the legatees; a life use to three of them, and the principal to their children with bequest over if [147] they leave no children. A condition is appended to the bequest to one of these children that if he die without issue it shall go over. This omits the trust for those who were to take the income-for life, omits to direct payment of the principal to his children,, and, even if here issue means children, it does not direct payment to his issue. If inference is warranted it is that the principal is given to Frank and his issue. Upon the whole we think it was not the testator’s intention to give a mere life use to Frank, and that, under the rules of construction, he is entitled to the money. Decree reversed, and it is now considered and decreed that the executors pay the share or legacy of Jacob Fitzwater, less the costs, to his son Frank Fitzwqfer, the same being $7112.20. Costs of this appeal to be paid' by the appellees out of the fund in their hands.