Buckman's Estate

Gest, J., — Joseph C. Buckman, by his will dated Oct. 18, 1894, devised to his wife, Carrie, “the net income of my estate during the term of her natural life.” And his residuary estate he devised “to be divided in equal shares amongst all my children or their heirs.” The testator had five children: two daughters, Florence and Jennie, and three sons, Walter R., J. Morris and Harry L. Buckman. His daughter, Florence, became non compos mentis, and the testator on Dec. 1, 1914, executed a codicil in these words: “My daughter Florence’s share is to be invested and she to have the income of the same during her lifetime, at her decease the principal sum is to be equally divided among my other children should any be deceased leaving children said share is to be equally divided among them.” On Jan. 11, 1918, Jennie Watson, one of the daughters, died, leaving two children, J. Walter and Caroline B. Watson; and on Oct. 31, 1918, the testator died. His wife had predeceased him. On June 20, 1923, J. Morris Buckman died without issue; on Feb. 9, 1925, Walter R. Buckman died, leaving two children, Emily M. and Walter R. Buck-man, Jr.; and on Aug. 8, 1927, Florence died, leaving Harry L. Buckman the only surviving child of the testator. In his adjudication, the Auditing Judge, in disposing of the share of Florence, awarded one-third thereof to Harry L. Buckman, one-third to J. Walter and Caroline B. Watson, formerly Warner, children of Jennie, and one-third to Emily M. and Walter R. Buckman, Jr., children of Walter R. Buckman. This was on the theory that the gifts in remainder were contingent upon sur [654] vivorship at the death of Florence. The widow and executrix of the will of J. Morris Buckman has filed these exceptions on the ground that the interest of J. Morris Buckman was vested, and that the fund should have been awarded one-fourth to Harry L. Buckman, one-fourth to the children of Jennie Watson, one-fourth to the children of Walter, and one-fourth to the exceptant as executrix of the will of J. Morris Buckman. The will provided that on the decease of the testator’s wife, the life tenant, the estate should be divided among all the testator’s children or their heirs, and as the testator’s wife predeceased him, the interests of all the children clearly vested at his death. Even had the wife survived, this would still be the case: Patterson v. Hawthorn, 12 S. & R. 112, a leading case, repeatedly followed, and recently in Eichelberger’s Estate, 274 Pa. 576. Florence having become non compos mentis, the testator naturally protected her by means of a trust for her life, and directed the remainder at her death to be equally divided among “my other children,” with a proviso that should any be deceased leaving children, said share (meaning, of course, the share of any deceased child) should be equally divided among them. When the testator, in dealing with the share of Florence, referred to his “other children,” we cannot doubt that he meant all his children except Florence, as clearly as if he had mentioned them by name, and the provision for equality, repeated from the will, shows that he intended to benefit all of his children alike, except for the special provisions made for Florence on account of her mental condition: Sailer’s Estate, 26 Dist. R. 1062. In Berg’s Estate, 96 Pa. Superior Ct. 125, cited in the adjudication, the will directed a division, not among my “other children,” but “among my remaining children,” which is a very different thing. The natural meaning of “remaining children” is surviving children, those who remain at the death of the life tenant. The testator, it is true, provided that if any of his “other” children be deceased (at Florence’s death) leaving children, they should take their parent’s share, and the Auditing Judge was of the opinion that the remainder was contingent, and J. Morris Buckman having died without issue, his executrix could not take. This construction, however, ignores the principle of Carstensen’s Estate, 196 Pa. 325. There the devise on the decease of the life tenant, the husband of the testatrix, was to “my brothers and sisters, the child or children of any of my said brothers or sisters who may then be dead, to take and receive the share that his or their parent would have taken if living.” This was held to vest an interest in the brothers and sisters at the death of the testator, subject only to a divestiture in favor of their children, if they left children, and the estate of one who died without issue during the life tenancy was held entitled. As Judge Ashman pointed out in Adams’s Estate, 208 Pa. 500, which was affirmed by the Supreme Court, “the gift to the brothers and sisters was in absolute terms with no condition that they should be living at the death of the husband, the tenant for life, and there was simply an alternative limitation, that if a brother or sister should be then dead, but leaving issue, his issue should be substituted to his interest.” The case is similar to Strother v. Dutton, 1 De G. & J. 675, where the testator bequeathed a fund, the interest to be paid to his daughter during her life, and “at her death the principal to be distributed equally among her children, if any children are living from son or daughter being dead [sic] such child or children to be equally entitled to the share their parent would be entitled to if living.” Certain of the life tenant’s children died without issue during her life, and Lord Justice Knight Bruce held that their interests were vested, saying: “That gift in favor of the issue of children who have issue does not [655] affect the shares of the children who died without leaving issue.” Garstensen’s Estate has been so frequently followed that it would be tedious and unnecessary to refer to all the cases. We mention, however, Massey’s Estate, 235 Pa. 289; Neel’s Estate, 252 Pa. 394, and Jennings’s Estate, 266 Pa. 60. The Auditing Judge, however, held that the gift over on the death of Florence was implied only from the direction to divide, which, in his opinion, made the remainder contingent. In McClure’s Estate, 72 Pa. 414, which is cited in the adjudication, the estate was to be “divided” at the widow’s decease, but the Supreme Court held that the remainders to the nephews and nieces were vested and that the husband of a deceased niece was entitled to her share. In Rosengarten v. Ashton, 228 Pa. 389, the remainders were clearly contingent for other reasons. The direction was to pay over and distribute among all the grandchildren and the issue of such as may be deceased, such issue to take the share the parent would have taken if living at the time of the death of the last surviving child. This was a gift to a class which could not be determined until the period fixed by the will. In Alburger’s Estate (No. 2), 274 Pa. 15, and in the other cases cited in the adjudication, the construction of the wills was controlled by language expressly referring to survivorship at the time of distribution. The passage so often cited from Smith on Executory Interests, § 314, especially in Rosengarten v. Ashton, reads as follows: “Where there is no gift but in a direction to pay or transfer or divide among several persons, at a future period; though the future period is annexed to the payment, possession, or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide constitutes the devise or bequest itself; and, therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment.” It will, however, readily be perceived from a consideration of the context and of the cases cited by Mr. Smith that the contingency was inferred not merely from the direction to pay or to divide, but upon some language in the wills construed which indicated that the payment was to be made only upon the devisee’s attaining a certain age or the like. See Leake v. Robinson, 2 Meriv. 363; Murray v. Tancred, 10 Simons, 465, and Sansbury v. Read, 12 Ves. 75 (said by Jarman to be an obscure will). The above remark of Mr. Smith does not seem to be intended as a general canon of construction. And why should it be? What substantial difference is there between a devise after a life estate to the testator’s children (which is clearly vested) and a direction that the estate should be divided among them? Our more recent cases restrict greatly the force of what was said so broadly in Rosengarten v. Ashton. See Groninger’s Estate, 268 Pa. 184; Marshall’s Estate, 262 Pa. 145; Jennings’s Estate, 266 Pa. 60; Edelman’s Estate, 276 Pa. 503. And before Rosengarten v. Ashton, Ashman, J., dissenting in Man’s Estate, 2 Dist. R. 830, said: “This rule, of course, is intensely artificial and probably defeats the intention of the testator quite as often as it carries the intention into effect. A man cannot give an interest in his estate, short of the whole, without dividing the estate; and a direction to divide either in the present or the future would by most testators be regarded as one and the same thing with a direct gift.” The Supreme Court in Man’s Estate, 160 Pa. 609, reversed this court following Judge Ashman’s dissent. There are many English cases to the same effect. In Bennett’s Trust, 3 K. & J. 280, a ease similar to the present, Vice Chancellor Wood said: “It is clear that the use of the words ‘pay and transfer’ as the only words of gift does not make such a bequest contingent,” citing Leeming v. Sherratt, 2 Hare, 14; [656] Strother v. Dutton, 1 De G. & J. 675; Adams v. Robarts, 25 Beav. 658; Packham v. Gregory, 4 Hare, 396. Furthermore, the presumption is always in favor of a vested legacy, especially when it is given to children: Amelia Smith’s Appeal, 23 Pa. 9; Fitzwater’s Appeal, 94 Pa. 141. Our conclusion is that the executrix of J. Morris Buekman is entitled to one-fourth of the estate held in trust for Florence, and the exceptions should be sustained. The fact that under the will of J. Morris Buekman, his widow, a stranger to the blood of the testator, will ultimately receive the award, has, in our opinion, nothing to do with the case. Accordingly, the exceptions of Ellie G. Buekman, executrix of the will of J. Morris Buekman, are sustained, and the account is recommitted to the Auditing Judge in order that distribution may be awarded in accordance with this opinion.