Appeal of Schwartz

Opinion, Mr. Chief Justice Gordon : The learned counsel for the appellant has not satisfied us that the court below erred in its decree of distribution. We adopt the construction of the will of Jacob L. Moyer given by the learned judge of the Orphans’ Court. It is undoubtedly somewhat obscure, but we think that the true intention of the testator has been ascertained with reference to the devise to John. In case of John’s want of success in the business which his father had bequeathed to him, the executor is directed to sell out his interest in that business, and “ any loss which may be sustained shall be deducted from John’s share.” So also, in case John was unsuccessful, or became profligate, and the moneys due by him had to be collected, then “ he shall only receive the interest on his share in my whole estate during life.” It thus becomes important to ascertain what the testator meant by John’s share in his whole estate, of which he thus speaks. The will directs, inter alia, that after the payment of the testator’s debts, the residue of his estate shall be invested in safe securities, and shall be held and disposed of by his executor as follows: $5,000 to each of his two daughters when they arrive at the age of twenty one; $5,000 to each of his sons, Charles and Jacob L., when they arrive at the age of twenty-three, and to John the like sum of $5,000, as soon as he could satisfy the executor that he was worth clear of debts, eight thousand dollars. The reason for this is explained as follows: “I make this provision for my son John, because he [349] has an opportunity in an established business, which I cannot give to my other children.” Were it not for a subsequent item of the will which provides that if any of his children should die under the age of twenty-one, without issue, “ such child’s share shall go to the surviving children or their heirs, ” all these legacies must be taken as vested; but, as this provision could not affect John, his legacy vested in him at the time of Inis father’s death. The contingency related only to the time of payment, so that sooner or later he, or his representatives, must come into the enjoyment of the principal sum, meanwhile it was to be invested for his use. This fact seems to have been overlooked by the counsel for the appellant; for, certainly, if the gift to John was a vested one, there could be no doubt of the testator’s meaning when he spoke of John’s share in his whole estate, and the attempt to limit it merely to the residuary property must be regarded as abortive. This view also seems best to accord with the testator’s general intent; for, as to his other children, he makes like provision; that is, if any of them shall be found to be of bad habits or profligate, he or she shall not receive his or her legacy, but it shall be invested for the use of such a one during life, and then over to his or her heirs. It is therefore apparent, that the testator intended to treat all his children alike, and did not, by giving John what he regarded as a preference, intend to cut him out of his bequest. What we have said disposes of the second, fourth, and fifth assignments, for they are all dependent on the first, which involves the construction of the will. As to the third, which embraces the disposition of the accumulations, we have but little to say. The principle on which the court based its order is undoubtedly sound, and whilst it is true that these accumulations might have been allowed to remain in the hands of the executor as a contingent fund, yet as it does not follow that any fund was needed for the use of the estate, we must concede something to the sound discretion of the court below. The decree is affirmed, the appeal is dismissed, and it is ordered that the appellant pay the costs of this appeal.