Appeals of the Pennsylvania Co. for Insurance on Lives & Granting Annuities

Mr. Justice Paxson delivered the opinion of the court, There were two appeals in this case: one in the estate of Mary Frances Allen, and the other in the estate of William II. Allen. They do not require to be separately discussed. The only assignment of error pressed upon the argument was the third, which alleges that “ The court below erred in holding that on the death of Roland Curtin Allen his share of the fund passed to Ellen Honora Allen.” The contention grows out of the following clause'in the will of Mary Frances Allen : “I give, devise and bequeath to my husband, William Henry Alien, the interest, rents and profits [495] of one third of the said residue of my estate during the continuance of his natural life ; and after the decease of m v said husband, I give, devise and bequeath tiie remainder of said third to my step-children, Roland Curtin Allen and Ellen Honora Alien, and in case of the decease of both of the said step-children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my daughter, Mary Quincy Allen, and to each and every other child which may hereafter be born of me, and to their issue; and in case of the decease of my said daughter and all of said children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my brothers, Samuel Quincy, Edward Gorham Quincy and George Hatch Quincy.” Roland Curtin Allen died intestate, unmarried and without issue after the death of the testatrix and during the lifetime of her husband, William II. Allen. Ellen Honora Allen intermarried with a Mr. Sheldon, and is still living. The view taken by the learned court below was that the testatrix did not intend her husband to have more than a life estate in the remainder thus given; that she did intend that her two step-children should take the principal of that part of her estate of which the income was given to their father, her husband, for life ; and that she did not intend her own child to take this share at all, unless at the death of the father, both of the step-children should be dead without leaving issue. In order to carry out this supposed intent, the court held that there was a limitation in the nature of a cross-remainder implied in favor of the step-daughter, so as to give her, at the death of the father, the whole. The true question is, whether under this will, the stepchildren took a vested interest. If they did, the ruling of the court below was error. Both sides agree upon the soundness of the rule laid down in Theobald on Wills, 573, in regard to cross-remainders. Mr. Theobald says: “ When the testator has disposed of his whole interest in realty or personalty; if, for instance, absolute vested interests have been given to several as tenants in common with a gift over upon the death of all in certain events, cross-limitations cannot be implied between them as there can be no intestacy, and cross-limitations would divest vested interests. If, however, the interests are not vested but contingent, with a gift over upon the death of all before the interests vest, the argument against an intestacy applies, and no argument can be raised against cross-limitations oil the ground that they would divest vested gifts, and therefore, in all probability cross-limitations would be implied.” Cross-remainders are sometimes implied to prevent intestacy. [496] When, however, a vested interest is given, there is no intestacy, and the only effect of an implied remainder in such case would be to divest a vested interest. It is obvious upon an examination of the above rules laid down by Mr. Theobald, that when he speaks of “absolute vested interests” he does not mean estates, which, though vested, are liable to be subsequently divested by the happening of a contingent event. The question of cross-remainders arises only when the testator has given a limitation over for the purpose of divesting a vested interest, or perhaps to meet the case of a contingent remainder which has never vested. In this case the language of the will: “And after the decease of my said husband, I give, devise and bequeath the remainder of said third to my step-children,” clearly gave> a vested interest to the said step-children had it stopped there. Do the subsequent words: “and in case of the death of both of the said step-children without issue surviving them and me, I give, bequeath and devise the said remainder,” &c., convert the gift into a contingent remainder? We think not. It leaves the gift a vested interest subject to be divested upon a future contingency, which has never occurred, to wit, the death of both the step-children without leaving issue surviving them and the testator. The case of Skey v. Barnes, 3 Mer., 335, cited by Mr. Theobald, was considered by Mr. Jar-man as having finally settled the law on the subject. It was said by. the Master of the Rolls in that ease: “With respect to personal property, if a share once vests, though liable to be divested upon a contingencjs the question of reciprocal succession or survivorship can never arise. If the contingency happens, the share goes over; if the contingency does not happen the share remains vested and goes to representatives.” In the later case of Baxter v. Losli, 14 Beav., 612, there was a gift to certain persons for life, and after the decease of the life tenants to the use of and equally between G. and E. But in case it shall happen that the said G. and E. shall neither of them be living at the death of the survivor of the tenants for life, then I give and bequeath the same to F. Sir. John Romilly, Master of the Rolls, said in his opinion : “ I now come to consider the gift over which is, if neither be living at the death of the survivor of the tenants, for life. Scott v. Bargeman, 2 P. Wms., 68, is a direct authority, if any were wanted, for the court holding that this gift over can only take effect in case the event occur on which he directs the gift over to take effect. In this case that event is in case neither of them be living. This never happened, for one is still alive, and therefore the contingency on which the gift over was to take effect has not taken place, and there are no words to be found [497] In the will by which E. (the survivor) can be held to take by implication.” In Scott v. Bargeman, cited in the foregoing opinion, and also relied upon by tlio Auditing Judge below, the interests were held to be contingent, and for that reason cross-remainders were implied. The principal criticism which has been made upon that case is that the interests should have been held to be vested, and not contingent. It does not appear, however, to conflict with the rule laid down bjr Mr. Theobald. Our own cases of Chew’s Appeal, 1 Wright, 23, and McKee’s Appeal, 15 Norris, 277, are believed to be in accord with the foregoing views. That the English cases are not all harmonious or consistent may be admitted, but the leaning of the later cases then as well as now, has been to favor the vesting of interests wherever there are reasonable grounds for such construction. The court below attached much weight to what they believed to be the intent of the testator, and their ruling was evidently designed to carry it into effect. If that intent had been clearly expressed it would govern this case. It is not, however, expressed at all, and is only a matter of inference. It is possible their view as to the testator’s intent may be the correct one, and that Mrs. Allen never intended her husband to have more than a life interest in this third of her estate. It is more probable, however, that the contingency of his inheriting from his children never occurred to her or the draftsman of the will. It often happens that by the death of persons to whom a vested interest has been given, the property passes to some_ one not contemplated by the testator. It may be so here, but the intent of the testatrix is not so evident as to override what we regard as the settled law as to the vesting of a bequest under the will. The decree is reversed in each estate at the costs of the appellees, and it is ordered that distribution be made in accordance with the views as expressed in this opinion.