Dana Estate

Klein, P. J., A single narrow but extremely important question is raised by these exceptions: Was testator’s final residuary gift vested or contingent? Our task is made more difficult by reason of the apparent lack of harmony in the many decided eases dealing with this subject. Judge Hunter, the learned auditing judge, in a carefully studied adjudication in which he analyzed at considerable length the pertinent authorities, concluded that the remaindermen who survived testator, but died in his daughter’s lifetime, had vested interests subject to being divested if they died leaving issue. He held that the instant case is controlled by the principles enunciated in Carstensen’s Estate, 196 Pa. 825 (1900). He also relied upon such cases as Neel’s Estate, 252 Pa. 394 (1916); Lloyd’s Estate, 326 Pa. 230 (1937), and Rickenbach Estate, 348 Pa. 121 (1943). Exceptants, on the other hand, maintain that the remainders are contingent and that Rosengarten v. Ashton, 228 Pa. 389 (1910) controls. They also contend that Hood’s Estate, 323 Pa. 253 (1936), Al-burgers’ Estate (No. 2), 274 Pa. 15 (1922), and many [510] other cases cited in their comprehensive briefs, support their position. After a careful study of the matter, the majority of the court is in agreement with the auditing judge, and it will serve no useful purpose to repeat here in extenso what has been so fully and carefully discussed in the adjudication. It is one of the basic rules of construction, early embodied in our law, that, in the absence of a clear expression of contrary testamentary intent, the immediate vesting of future interests is favored. We find no such contrary intent in the present will. Six times in his will and codicil testator demonstrated that he knew precisely how to make survival of a given event a prerequisite to taking. Thus, in paragraph 3, he used the expression, “to her issue if she had any living at her death”. In paragraph 13, and three times in paragraph 14, testator refers to his daughter’s “living issue at her death”. He used similar language in item 2 of his codicil. Testator’s failure to attach the condition “if living” to the alternative gifts in remainder is therefore crucially significant and leads persuasively to the conclusion that testator intended the disputed gifts to be vested: Brumbach Estate, 373 Pa. 302 (1953); Bomberger Estate, 347 Pa. 465 (1943). Testator’s general testamentary plan follows the usual and customary pattern adopted by family men for the protection of their wives and children. He established life estates for his wife and daughter and gave the daughter the right to appoint the principal by will to her children or other issue and in the absence of such appointment to such issue absolutely and in fee simple. The gift to the brothers and sisters of testator’s father or their issue is a substitutionary plan to be invoked only if testator’s primary plan fails because of the death of his daughter without issue. It is obviously a catch-all to prevent an intestacy. [511] Testator certainly gave no indication that he was particularly concerned with the manner in which his estate would be ultimately divided among his col-laterals, if his own line ended with his daughter’s death. We cannot now, almost 50 years after the will was written, conjure an intention which would be most agreeable to the circumstances which actually developed, but which testator manifestly did not foresee or anticipate and which apparently disturbed him little. See Jacob’s Estate, 343 Pa. 387 (1941); Morrison Will, 361 Pa. 419 (1949). It is not the province of the court to construe what testator possibly intended, nor what the court thinks he might or should have said in providing against the circumstances which eventuated. We can only construe the language he actually used: Conner’s Estate, 346 Pa. 271 (1943), and Britt’s Estate, 369 Pa. 450 (1952). We cannot agree with exceptants that the “pay and divide” rule must be applied in the present case and the gifts in remainder held to be contingent. Nor do we agree with them that such cases as Wilson Estate, 369 Pa. 583 (1952), Edmund’s Estate, 374 Pa. 22 (1953), and McCrea Estate, 78 D. & C. 154 (1951), are controlling. In our opinion, enjoyment of the gifts in remainder was postponed to let in the intervening life estates for the benefit of testator’s widow and daughter: Rickenbach Estate, supra. We believe, further, that we must attribute to testator, in construing the language he used, an intention which conforms to the well-established principle favoring the immediate vesting of future estates. The exceptions are dismissed and the adjudication is confirmed absolutely.