Estate of Batione

Opinion, Mr. Justice Green: The contingency, upon the happening of which Pedro Salome was to have an interest in the estate of the testator, has actually occurred; and, if there is any part of the estate accessible to him, he should have it in accordance with the precise terms of the will, unless there is some very good reason for excluding him. That contingency is thus expressed in the will: “In the event of my dear wife outliving our child, Modesta, at my wife’s death two thirds of the whole estate (■§) is to be equally divided amongst my father and sisters then living, the remaining one third (J) to become the absolute property of my friend Pedro Salome or his heirs forever.” The widow did outlive the child Modesta. The two thirds of the estate bequeathed to the father and sisters were released upon the payment to them of $1,633.33, while Modesta was yet living. The money to pay that sum was taken from the body of the trust estate, and to that extent the principal of the estate has been diminished. By the election of the widow to take at law, and the birth of a posthumous child, each of them being entitled to one third part of the estate absolutely, two thirds of the estate are diverted from the operation of the will, and Salome’s interest, if he has any, is but one third of a third, or one ninth of the whole. Two questions arise : first, is the remaining third of the estate to be treated as a part of the estate of the deceased, and subject to the operation of his will? and, second, is Salome entitled to be compensated out of this part of the estate, for his disappointment on account of the election of the widow ? Both appellants, being the widow and second child, claim that the share of Modesta was absolutely vested in her from the death of her father, and as such descended to them under the intestate law; and, if this be so, Modesta’s share is not a part of the testator’s estate, and is not subject to the operation [316] of his will. But we are not able to take that view of the question. We think the learned court below was correct in holding that Modesta’s interest was a vested estate, subject to be divested by her death before her mother. The positive and express provision of the will canuot be disregarded. Its meaning is perfectly free of doubt, and it is not necessary to invoke rules of construction, which are only intended for doubtful cases, in order to ascertain the intention of the testator. The language he has used fully expresses his meaning, and, by consequence, his intention. His wife did outlive Modesta; and, in that one event alone, he did direct that two thirds of his estate should he equally divided amongst his father and sisters, and the remaining one third should become the absolute property of his “ friend Pedro Salome, or his heirs forever.” An instance of this kind occurred in McCall’s App., 86 Pa. 254, where M. bequeathed a certain fund to her executors, in trust to pay the income to G. for life, and after his death to pay the income to W. until he attained the age of twenty-five years, and on his arriving at that age to pay to him the principal; but, if he should die before he reached that age, without wife or issue surviving him, then the principal was to go to the eldest child of P. The auditor, whose report was adopted by this court, thus described the interest of W.: “ This is not merely a direction to pay; it is a direct gift to trustees upon certain trusts; and the words ‘ to pay,’ are the usual words defining the duty of the trustee, and created an estate in George C. McCall for life, and a vested remainder in William C. McCall, subject to be divested upon his death before arriving at the age of twenty-five years.” As William survived his age of twenty-five years, his estate became completely vested, but it was correctly described by the auditor as subject to be divested by his death before that time. Another instance of the same kind occurred in Churchman’s App., 22 W. N. 131, (not reported in State Reports,) in which the opinion of the Orphans’ Court was adopted as reported in 20 W. N. 367. A testator by his will bequeathed property to his wife for life, and at her death bequeathed legacies which he directed should not take effect until after his wife’s death. By a codicil he directed that, if any legatee should die during the wife’s lifetime, his legacy should lapse into the residuary estate: Held, [317] that the legatees took a vested interest, subject to be divested in the event of their deaths before the testator’s wife. In Montgomery v.Petriken, 29 Pa. 118, Lowrie, J., said: “The devise over to Robert and James after the death of William is in form a vested remainder, and we think it is so in substance. The estate is really granted to William for life, with remainder in fee to Robert and James, and it is only on condition that William shall recover 'his sanity that he is to have a fee, and then it is to be by defeating the fee previously granted to the others. Their fee is vested, subject to be defeated if ever the event contemplated should happen.” Authorities to the same effect might be easily multiplied, but it is quite unnecessary. The question is too plain. At the time of the original adjudication of the estate in 1880, the sum of $1,638.38 was deducted from the amount awarded to the trustee, by consent of all parties, apparently, in order to purchase releases from the testator’s father and sisters. Were they now interested, they would under the will be entitled to two thirds of the trust fund; but, having released their interests, and the releases having been obtained for the benefit of the estate, a fund arises which was not within the contemplation of the testator, and not provided for by his will. As the trust fund was diminished to that extent, and the appellee’s interest in it remains, it is plain that his share of the fund contributed one third of the amount paid for the releases. The death of Modesta, before her mother and before attaining the age of twenty-five years, having returned into the estate her share of the fund, a fund is established accessible to the appellee to compensate him for the loss he sustained by the election of the widow. This equitable doctrine has been fully recognized and enforced in this state. Thus, in Sandoe’s App., 65 Pa. 314, we said: “ The rule in equity treats the substituted devises and bequests to the wife as a trust in her for the benefit of the disappointed claimants, to the amount of their interest therein; and the court will assume jurisdiction to sequester the benefit intended for the refusing wife, in order to secure compensation to those whom her election disappoints.” The same doctrine was also applied in Gallagher’s App., 87 Pa. 200. It is argued on behalf of the daughter Benicia that, if we hold that the share of Modesta was lapsed and returned into the es [318] tate of her father, it descends to her under the intestate law, and no part of it can be appropriated to the compensation of the appellee for his loss by reason of the widow’s election. But the estate given by the will to the widow was an estate for life in the whole of the decedent’s property, and it is this interest of the widow under the will that is sequestrated for the use of the disappointed legatee. As that interest computed to the present time would have amounted, since the death of the testator in 1878, to twelve years’ enjoyment of the income which the widow would have taken under the will, and to the further income for as many more years as she may live, it is obvious that her bequest would amount to much more than the sum decreed to the appellee. The fund in question, being a part of the estate of the testator undisposed of by his will, is liable, in the first instance, to sequestration for the benefit of the appellee as a disappointed legatee. If anything is left after this has been done, the rights of Benicia under the intestate law can be considered. The decree of the Orphans’ Court is affirmed, and the appeals are dismissed, at the costs of the appellant.