Evans's Estate

Van Dusen, J., Testator gave a certain portion of his estate in trust for two daughters for life, and after the death of both of them without issue, referring to the survivor, he provided: “But in case she should die without leaving any child or children, then I give, devise and bequeath the part last aforesaid to her brother or brothers then living and the lawful issue of such of them as may then be deceased, their heirs and assigns, the child or children of a deceased brother shall, however, only take the share which his, her or their parent would have taken if living.” Three sons survived the testator, but all of them died before the life-tenants without issue. The life-tenants also died -without issue. Testator also left to survive him two children of a deceased son, one of whom, William Henry Evans, died before the life-tenants -without issue. The auditing judge awarded one-half of the remainder to the personal representatives of William Henry Evans, being of the opinion that the condition expressly annexed to the gift to the first takers (that they should be living at the time of distribution) was not impliedly annexed to the gifts which were substituted in case of their [552] deaths. In this he is supported by many cases, of which Carstensen’s Estate, 196 Pa. 325, and McCauley’s Estate, 257 Pa. 377, are noteworthy examples containing full discussions. See, also, Bair’s Estate, 255 Pa. 169; Jennings’s Estate, 266 Pa. 60. This conclusion carries out the sound principle that conditions are not to be implied, but must be express. The exceptants refer to Rosengarten v. Ashton, 228 Pa. 389, as a case in which an opposite conclusion was reached. But that decision was expressly rested upon the fact that the provision for the substituted class was contained only in the words “pay over and distribute” and not in words of direct gift, such as we have in the present ease, to wit, “give, devise and bequeath.” As is further explained in Rau’s Estate, 254 Pa. 464, “. . . the well known rule in such a case is that, as the direction to pay or divide constitutes the bequest, the vesting of the interest itself is postponed, and not merely the possession and enjoyment of it.” Support is found for this in prior authorities which are cited and in the later cases of Evans’s Estate (No. 1), 264 Pa. 357, and Hildebrant’s Estate, 268 Pa. 132. In other cases, for various reasons, the direction to pay and divide is considered not to annex the time to the bequest: Groninger’s Estate, 268 Pa. 184, and cases there cited. The exceptions are dismissed and the adjudication is confirmed absolutely.