Wildemore's Estate

Van Dusen, J., Testator gave his estate to his widow for life, and at her death or remarriage to his children absolutely; and then proceeded: “But should either of my said children die without leaving a lawful heir or issue then it is my wish that the said share or shares be divided equally between the survivor or survivors, but should there be a lawful heir or issue of the one so dying the said heir or issue are to take the said share absolutely according to law.” [812] One child of testator died in the lifetime of the widow, leaving issue. The Auditing Judge regarded this as performance of the condition, and awarded distribution to the issue of this child. Exceptions were filed asking for distribution to the representatives of this deceased child on the ground that his interest became vested upon surviving the testator. If the testator had indicated, even by inference, the period during which he contemplated that the death of a child would occur, his wish would be respected. Wills in which this was done are to be found in Stoner v. Wunderlich, 198 Pa. 158; Smith v. Piper, 231 Pa. 378; Baird’s Estate, 255 Pa. 169; Deeter's Estate, 280 Pa. 135, and Kirkpatrick’s Estate, 280 Pa. 306. But our testator said nothing which throws any light on that point; we do not know what he intended (and perhaps he did not know himself); and we are forced to rely on a canon of construction. It is thus expressed in Seewald’s Estate, 281 Pa. 483: “Where an absolute estate is devised, followed by a gift over in event of the death of the donee without issue, such words will be construed as referring to death without issue in the lifetime of testator if the gift is immediate, or during continuance of the life estate if the gift is not immediate.” By the word “immediate” is meant a case where possession takes place immediately on the death of the testator. Of this class is Seewald’s Estate, supra; Mickley’s Appeal, 92 Pa. 514; Morrison v. Truby, 145 Pa. 540; Coles v. Ayres, 156 Pa. 197; Neubert v. Colwell, 219 Pa. 248; Williamson v. Greene Improvement Co., 278 Pa. 358, and Freeman’s Estate, 281 Pa. 190. A gift is “not immediate” when possession is postponed to an intermediate estate. Of this class are Fitzwater’s Appeal, 94 Pa. 141; McCormick v. McElligott, 127 Pa. 230; McAlpin's Estate, 211 Pa. 26; Mayer v. Walker, 214 Pa. 440; Patterson v. Reed, 260 Pa. 319; Breese’s Estate, 2 Dist. R. 364, and the case at bar. The word “wish” in the first part of the clause quoted above is not preca-tory, as appears from the positive language of the last part of the clause, if for no other reason. The exceptions are dismissed and the adjudication is confirmed absolutely.