Nixon's Estate

Van Dusen, J., — It seems to us that where there is a trust of income to continue for a period not altogether dependent on the lives of the recipients, and the income is to go meanwhile to a class, with the substitution of the issue of any member of the class who may die meanwhile, survivorship is to be implied within the class. Therefore, if one of the class dies [489] during the trust, the income he has been receiving does not go to his personal representatives pur autre vie but to the others. This is the effect of the latest decision of Maxwell’s Estate, 261 Pa. 140. We believe it is a rule which best represents what the testator would have said if he had expressed himself fully. The opposite conclusion, arrived at in Little’s Appeal, 81 Pa. 190, and many cases following it, is, we think, well explained in our ease of Megargee’s Estate, 10 D. & C. 595: “In each of the foregoing eases an examination discloses the gift of income to individuals, either by name or designation, with no gift over to any class as such.” The spendthrift trust provision characterizes the gift as one personal to the legatee and makes it still more probable that the testator did not intend the interest of the legatee to continue after death, though we cannot say that it is controlling. It is argued that the opinion in Maxwell’s Estate gives a pretty nearly conclusive effect to a spendthrift trust provision. As the will in that case did not contain such a provision, we do not believe the opinion is to be read in that sense. Nevertheless, this feature is now actually present in this will and it is entitled to consideration. The exceptions are dismissed and the adjudication is confirmed absolutely.