Jessup Estate

BOLGER, J., Augustus E. Jessup died August 16, 1925, leaving a will which was duly probated. Under and by virtue of the terms of a certain indenture of marriage settlement dated June 10, 1890, certain assets were conveyed to the trustees named in the deed and there was reserved to the settlor, Augustus E. Jessup, the right to appoint the principal of the fund upon the death of himself and his wife, the former Lady Mildred Bowes Lyon. By the second paragraph of his will the decedent exercised his power of appointment (his first wife having died) and provided that the remainder of the fund should be divided into thirty equal parts or shares, the same to be held in trust as follows: “Ten (10) of such parts or shares for the benefit of my son Alfred C. Jessup; five (5) shares for the benefit of my son Alexander M. Jessup; five (5) shares for the benefit of my daughter Olive C. L. Jessup; five (5) shares for the benefit of my daughter Mary V. Jessup, and five (5) shares for the benefit of my wife Jenny J. Shaw, under separate trusts, to pay over the income therefrom unto my said wife and children by any previous marriage respectively for life. In Trust, upon the death of each child, to assign, transfer, pay over and divide the principal of such share to and among his or her children, or the issue of deceased children, share and share alike, per stirpes, upon the principle of representation. In Trust, upon the death — 3 — of any child without leaving children or issue him or her surviving, to divide the share of the child so dying among the other hereinbefore mentioned beneficiaries under this my Will in the same proportion as each share bears to the whole, less the share of the child so dying, and to hold the same under the same uses, trusts, contingencies and remainders herein-above set forth; “And for my wife, in Trust for her life, and likewise for any legitimate issues of my present marriage, who may attain to twenty-one years of age and obtain a vested interest, And failing either of these contingencies the said share shall be equally divided between the hereinbefore mentioned and surviving beneficiaries under this my Will.” At the time of the death of Augustus E. Jessup, his two sons, Alfred C. Jessup and Alexander M. Jessup, his two daughters Olive C. L. Jessup, later Howell, and Mary V. Jessup, later Hood, and his wife, Jenny, were living, and the trusts were established including the trust for Jenny J. Shaw, later Nunes de Sa. She died January 14, 1968, a resident of Gloucestershire, United Kingdom, leaving a last will and testament dated November 7, 1957, on which letters testamentary were granted to Westminster Bank, Ltd., of London. Alfred C. Jessup died December 8, 1953, and Alexander M. Jessup died March 23, 1931. It is stated that Girard Trust Bank is the executor of their respective estates. Olive Jessup Howell and Mary Jessup Hood survive and are sui juris. No issue was born as a result of the marriage of testator and Jenny J. Shaw. The question to be determined is the meaning of the words used by testator to describe the distribution he intended after the death of his wife without leaving issue born of their marriage then living. In — 4 — that event he stated . . the said share shall be equally divided between the hereinbefore mentioned and surviving beneficiaries under this my Will.” The “hereinbefore mentioned” beneficiaries clearly refers to testator’s four children named in the preceding paragraph of the will. What is the meaning of the word “surviving”? The cases are clear that absent a contrary intention plainly manifested by the will, “surviving” is to be construed as referring to the death of testator and not of the life tenant: Hope Estate, 398 Pa. 470 (1960). This rule of construction is an application of the general rule that an interest is to be construed contingent only when it is impossible to construe it to be vested. Counsel for Mary Jessup Hood contends that testator has manifested an obvious intent that the remainder interests are contingent. While the language of the will is not entirely clear and while it is possible to so construe it, such uncertainty is not sufficient. Where the meaning is vague, a remainder will be construed as vested rather than contingent; what is required is not that the words admit of a possible or even reasonable inference that the testator intended a contingent remainder, but that such intention should appear plainly, manifestly and indisputably, otherwise the estate is always held to be vested: Bomberger Estate, 347 Pa. 465 (1943); cf. 6 Hunter, Penna. Orphans’ Court, Vested and Contingent Interests §l(a). And the presumption applies with greater force when provision is made for a child or grandchild: Brumbach Estate, 373 Pa. 302 (1953). These presumptions, then, fall only in the face of clear evidence of an intention that the remainder be contingent. We find no such clear evidence with respect to testator’s children. There is evidence in the will to the contrary. Testator knew how to create contingent interests, for in the preceding paragraph of his will he provided that upon the death of a child “with — 5 — out leaving issue him or her surviving” the remainder pass to the trusts created for the other named beneficiaries. The only conclusion which can be drawn from the lack of a similar provision in the language under consideration is that testator did not intend the remainder to be contingent: See Handy’s Estate, 314 Pa. 61 (1934), where under similar facts the same conclusion was reached. October 23, 1969. We believe, however, and so hold that testator did not intend his wife’s estate, should she die without children born of their marriage, to share in the principal of the trust set aside for her benefit during her life. Testator specifically and in two places limited any interest of his wife in this trust or the trusts set aside for his children for her life. It is anomalous to construe this will in such a way that she has an interest in principal. Whatever testator meant by the language he used he clearly intended his wife to have only an interest in the income of her trust. We are satisfied that the Act of June 29, 1923, P. L. 914, now incorporated in section 14(4) of the Wills Act of April 24, 1947, P. L. 89, has no application to the present controversy: Clemson Estate, 17 D. & C. 2d 679 (Orph. Ct. Allegheny 1959). And now, January 21, 1969, the account is confirmed nisi. OPINION SUR EXCEPTIONS TO ADJUDICATION KLEIN, Adm. J., The question of whether a gift should be construed as vested or contingent has plagued probate courts for countless years. However, in order to confirm title to property at the earliest possible time and to make it more readily marketable, the courts have always favored vested estates. In Newlin Estate, 367 Pa. 527, 534, Mr. Justice Bell (now Chief Justice) succinctly summarized the law on the subject in the following language: — 6 — “Moreover, if it is not clear from the language of the will whether the remainder is vested or contingent, then as Mr. Justice Linn said in Weir’s Estate, 307 Pa. 461, 468, 469, 161 A. 730, ‘it is necessary to keep in mind the rule “that an interest is to be construed contingent only when it is impossible to construe it as vested”: Rau’s Est., 254 Pa. 464, 98 Atl. 1068; that the intention to create a contingent interest “should appear plainly, manifestly and indisputably.” McCauley’s Est., 257 Pa. 377, 101 Atl. 827 .. . In Marshall’s Est., supra, it is said: “The law leans to vested rather than to contingent estates, and the presumption is that a legacy is vested: Carstensen’s Est., 196 Pa. 325 [46 Atl. 495]; Tatham’s Est., 250 Pa. 269 [95 Atl. 520]; Neel’s Est., 252 Pa. 394 [97 Atl. 502]; Rau’s Est. [supra]; and ‘the presumption that a legacy was intended to be vested, applies, with far greater force, where a testator is making provision for a child or a grandchild, than where the gift is to a stranger or to a collateral relative:’ Wengerd’s Est. 143 Pa. 615 [22 Atl. 869].” ’ See to the same effect: Groninger’s Estate, 268 Pa. 184, 189, 110 A. 465.” In Houston Estate, 414 Pa. 579 (1964), also written by Chief Justice Bell, the Supreme Court reaffirmed these principles but modified the rule that an interest is to be construed contingent only when it is impossible to construe as vested to be that “the intention of a testator or settlor to create a contingent interest must appear clearly and plainly.” (Italics supplied.) The reason for the modification of the rule is set forth in a footnote on page 594: “Several cases state that an interest will not be construed to be contingent unless it is impossible to construe it as vested. The word ‘impossible’ is an unfortunate expression, as many people believe that nothing is impossible. Several other cases use the expression ‘clear, plain and manifest’ while others — 7 — use ‘clear, plain and indisputably’ or ‘indisputable.’ However, we believe that it is fair and correct to say that an analysis of these authorities discloses an intention in each of the prior cases to express the same meaning, albeit in different language. The variety of language used to express this test has caused such confusion that we deem it wise to herein use and apply the test hereinabove set forth in this opinion, since it appears to be the fairest and most correct test.” If anything is clear in the present case, it is that it does not appear clearly and plainly that testator intended to create a contingent interest. We, therefore, agree with the conclusions of the auditing judge that the interests of testator’s four children, all of whom survived him, are vested. The auditing judge also held that the interest of testator’s widow, Jennie T. Shaw Jessup, later Jenny Nunes de Sa, who was his third wife, in the remainder of the fund upon which she received income for life, was contingent and not vested. We make no comment concerning this ruling as no exceptions were filed thereto. Accordingly, the exceptions are dismissed and the adjudication is confirmed absolutely. SUR EXCEPTIONS TO ADJUDICATION