Bartholomew's Estate

Per Curiam, This contention involves the constructioai of the third item of Jacob Bartholomew’s will, dated March 30, 1839, thirteen days before his death. After providing, in the first item thereof, for payment of his debts and funeral expenses, and, in the second, bequeathing to his wife all the household furniture and other articles of personal property, and making provision for her until the next ensuing fall, he disposed of the residue of his personal property in the next and last item, of which the following is an exact copy: “ Item 3rd then my will is that all the residue of my goods, chattels, stocks, merchandise, etc., shall be sold by my executor by making vendue in this faul and the money to be put out on interest and my wife Eliza is to have the interest of said money during her natural life and «after my wife’s death it is my will that the money be equally divided between my four children namely Franklin, Mary, Caroline and Margaret Rebecca share and share alike, and my will and meaning is that in case any of my said children shall depart this life before such time as the part or portion of him her or them so dying shall become payable, then and in such case the part or portion of him, her or them so dying shall go and be equally divided among the survivor or survivors of them—share and share alike if more than one, and to be paid to such survivors or survivor [318] at the time appointed. And lastly I do nominate and appoint Peter Koons sole executor of this my last will and testament hereby revoking all former wills by me made.” The testator left, surviving him, Eliza Bartholomew, his widow, and the four children named in the will. His son Franklin, by a former wife, is the only one who survived the widow, who married Peter Wagner, survived him and died in August, 1891. The other three children predeceased the widow, their mother, as follows : Margaret Rebecca died November 8, 1839, intestate, unmarried and without issue; Mary died January 28, 1864, intestate, unmarried and without issue, and Caroline died August 29, 1872, intestate, leaving to survive her, a husband, Thomas S. Bobst, and two children, viz.: James R. Bobst, and Lizzie, now intermarried with A. S. Truckenmiller. Thomas S. Bobst, husband of Caroline, died in 1877. The fund for distribution, $1,269.87, is balance of the money invested under direction of the will, the interest accruing therefrom having been paid to the widow during her life. As sole survivor of the four children, at the death of the widow, Franklin Bartholomew claimed the entire fund, and it was awarded to him. Appellant, as administrator of Caroline Bobst, deceased, claimed that part or portion to which she would be entitled, if living; and also, as administrator of Eliza Wagner, deceased, those parts or portions to which Mary and Margaret Rebecca would be entitled, if living. Other facts in relation to the case are fully stated in the opinion of the court, but they do not appear to be material. The intention of the testator, as expressed in the 3d item of the will, does not appear to be involved in any doubt. It is very clear that he contemplated no division of the corpus during the lifetime of his widow. It was to be invested, for her benefit, and kept intact until her death. Then it was to be divided equally among his four children, if all were then living, if not, then equally among those who survived his widow, if more than one, but if only one was then living, as sole survivor of the four at the time of distribution, he should take the whole. There is nothing in the will to indicate that he intended any interest in the corpus should vest in either of his four children prior to the death of his widow. It is after his “ wife’s death ” that the money is to be divided, and in immediate connection [319] therewith he declares his will and meaning is that if any of his said children shall die before the time fixed for division, then and in such case the part or portion of him, her or them so dying shall go and be equally divided among the survivors or survivor of them share and share alike, if more than one, and to be paid to such survivors or survivor at the time appointed. It may be that if the testator could have anticipated what lias actually happened he would have provided for such a contingency, but he does not appear to have done so, and it is not our duty either to change the provisions of his will by any strained construction thereof or to make a new one for him. We think the learned court was right on principle as well as authority in awarding the fund to Franklin Bartholomew. Decree affirmed and appeal dismissed at costs of appellants.