Appeal of Craige

Opinion, Mr. Justice Gbeen: These are three appeals by different parties in interest from the same decree, and as they raise the same question they are considered together. The adjudication made by the auditing judge gave the whole of the fund in controversy in two equal parts, one half to Caroline T. Ely, and the other half to the trustee of George W. Holmes. It is the distribution of the latter half which is the subject of the present contention. The adjudication of the auditing judge was based upon the theory that the bequest to the children of Edmund and Ann Holmes was contingent upon the death of both parents and the survivorship of those children who were then living. George Holmes being the only one of the children who was then living, was awarded the whole of the fund in dispute. The Orphans’ Court, liownver, took a somewhat different view of the language of the will, and while recognizing the correctness of the rule that grandchildren are not included within the description, “ children,” as legatees, held that the case came within the exception to this rule, that where there are grandchildren and no children living at the time of vesting, grandchildren will be treated as if they were children, and that also where there is ambiguity in the language describing the legatees, and the contingency is the death of two persons, the death of either is the period of vesting. In accordance with this view the Orphans’ Court awarded one half the fund in controversy to the administrator of Mrs. Hattie A. Jamison, who was a child of Edmund and Ann Holmes, and died after her father and before her mother. The theory upon which this was done was that the language of the will was ambiguous as to whether the period of vesting was the death of either, or the death of both the life-tenants, and therefore the construction should be most in accordance with the statutory distribution. We cannot agree with this view of the case, because we cannot discover any ambiguity in the language of the will. [230] The question arises under the forth clause of the will, and it is in these words:— “ In the event of my son’s decease and of his wife Ann, while his widow, or in the event of her second marriage, I will that my whole estate shall be immediately divided into two equal portions by my trustee herein named, or by his successor, calling to his aid the advice of my daughter Caroline, and such other friends of the family as they may choose to consult, and that one half of said estate thus divided shall be distributed in equal proportions to the children of my son Edmund and his wife Ann, living at the time of their death or said Ann’s second marriage, giving hereby to my daughter Caroline the choice of one-half of said estate thus divided.” Edmund, the son, died May 15, 1878, and Ann, his widow, died without re-marriage, September 11, 1888. The question is, did the estate of the legatees in remainder become vested at the death of the testator, in 1855, or at the death of his son Edmund, in 1878, or at the death of Ann, the son’s widow, in 1888 ? We are clearly of opinion that the estate of those in remainder is contingent and becomes vested in possession upon the death of both Edmund and Ann Holmes, and only in those of their children who were living at that time. The event upon which the estate is to be divided and distributed is twice defined. In the first clause of the fourth section it is thus described: “ In the event of my son’s decease, and of his wife Ann, while his widow, or in the event of her second marriage, I will that my whole estate shall be immediately divided into two equal portions by my trustees,” etc. It is perfectly manifest that there is to be no division under these words until two facts have transpired, to wit: First, the son’s death, and second, the death or second marriage of bis widow. It is the death of both, and not of either one, which must precede division. In this part of the fourth clause there are no words of gift or disposition, division only being provided for. After division into two equal portions has been made the last part of the clause directs the distribution thus: “ and that the one-half of said estate thus divided shall be distributed in equal proportions to the children of my son Edmund and his wife Ann, living at the time of their death or said Ann’s second marriage.” Here again, the death of both Edmund and Ann [231] is fixed as tlie period of vesting. It is not the death of either but of both that must transpire before vesting can take place. Their the persons who are to take are the children of Edmund and Ann, living at the time of their death — not the death of either but of both. There are no words of gift except those which also describe the legatees. The fund is to be distributed to the children, etc. It is therefore not the case of a previous gift and a postponement of the time of payment, but an immediate and direct gift to a class of persons who must fulfill the description contained in the very words of the gift in order to take it at all. They are not donees in any sense unless they are children of Edmund and Ann, living at the death of Edmund and Ann. There is but one such person, and if the words in which the estate is given are to receive their plain, simple, inevitable meaning, that one person must take the estate. It is impossible for us to say either that there is any ambiguity in the language of the will, or that there was any meaning in the mind of the testator other than that which his own' chosen words clearly express. In the case of Varner’s App., 87 Pa. -127, we said: “ It is true, words may in some cases be supplied to carry out a defectively expressed intent, but not to create another intent, where one is distinctly expressed by the language of the will. They can be supplied only in cases necessary to give effect to the most unquestionable purpose of the t.estator.” In McBride v. Smyth, 54 Pa. 245, we said: “It is unwarranted to assume that something different from the clear meaning of the words used was the testator’s intention when the assumption rests on nothing in the will itself, but solely on conjecture.” In this fast case the words of the will were quite similar to those we are considering, to wit: “ And upon the youngest of my children who may be Living attaining the age of twenty-one years,” the estate was given, “ to such of his children as might be living at that time.” We said: “ This is not a mere postponement of the time of enjoyment. It is a selection of individuals from a class to be donees of a right; a description of persons, not a regulation of the interest given. Tt is impossible to admit that a gift to such a number of persons as may meet a defined description is a gift to all the persons, whether they meet the description or not. The rule of legal construction, as well as the testamentary intent in [232] such cases, is well stated in Smith on Executory Interests, page’281. It is this: 4 Where real or personal estate is devised or bequeathed to such children, or to such child or individuals as shall attain a given age, or the children who shall sustain a certain character, or do a particular act, or be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person. For, until the age is attained, the character is sustained, or the act is performed, the person is unascertained; there is no person answering the description of the person who is to take as devisee or legatee.’ If then we are to seek for the intention of the testator in the language of his will, we must conclude he gave no vested interest in his residuary estate to any of his children, that the devises were contingent and became vested only, when the youngest child living attained the 'age of twenty-one years, in such children as were then in life.” And so here we are obliged to conclude that the estate given to the children of Edmund and Ann Holmes was contingent and became vested only upon the death of both, and in such children as were then in life. If there were any need to resort to the context of the will to find support for the foregoing conclusion it is readily discovered in the fifth section of the will. The testator there disposes of the other half of the estate in favor of his daughter Caroline, with power to dispose by will of the whole of her half to her surviving children or their lawful issue, “ and if no such child or children or their lawful issue should be living at the time of her death, then to be distributed ” either to her brother Edmund or to his children living at the time of her death. Here, when the testator wishes to introduce grandchildren as legatees in remainder, he does so by appropriate words. He carefully includes the lawful issue of such of Caroline’s children as may be dead among the ultimate legatees, and again limits to the children of Edmund, without including their issue, the possible enjoyment of Caroline’s share in the event of her total failure of issue. It is impossible to resist the conclusion that the testator knew well how to include grandchildren as the objects of his bounty if he so desired, and that when he did not do so it [233] was because he did not so intend. We sustain the ruling of the auditing judge. The decree of the court below is reversed, at the cost of the appellees’in the several appeals, and the record is remitted, with direction that the distribution of the fund in the court below be made in accordance with this opinion.