I dissent from the ruling of the majority. According to my understanding of the law applicable to the facts, here present, the portion of the residuary trust estate testamentarily referable to J. Arthur Lindsay, who died without "leaving lawful issue surviving", is distributable, by virtue of Sec. 15 (c) of the Wills Act of 1917, to the "children and heirs at law" of the testatrix's other "nephews" as the survivingresiduary legatees (the same being the "children and heirs at law" of the two brothers and the cousin of J. Arthur Lindsay) in proportion to their respective interests in the whole of theresiduum.
The answer to the question basically involved depends, preliminarily, upon whether the bequest to the "children and heirs at law" of J. Arthur Lindsay of one-fourth of the trust estate in remainder failed by reason of its being "incapable of taking effect". If it did, *Page 289 then, unquestionably, Sec. 15(c) of the Wills Act of 1917 became operative to determine the disposition to be made of the property embraced by the bequest, once freed from the trust. However, this Court now holds otherwise; and I fail to see how it can possibly be said that the bequest in question did not fail. If it didn't, then what became of it? Certainly, no effect is being given to it. Yet, it was fully capable of endowing the "children and heirs at law" of J. Arthur Lindsay with one-fourth of the residual trust fund in remainder had he died leaving issue surviving. But, since he died without leaving issue surviving, the bequest to his children and heirs at law (which otherwise would have been effectual) necessarily failed but only because of a want of the beneficiaries so designated. The property, now in controversy, undeniably constituted a part of the general residuary estate which the testatrix placed in trust by her will for the duration of certain lives. Furthermore, in like testamentary manner, she plainly attempted to make ultimate and final disposition in remainder of the whole of the residual corpus. Had J. Arthur Lindsay died in the lifetime of the testatrix, not leaving issue surviving, and had the testatrix thereafter not made any change in her will, would it be contended that the bequest of one-fourth of the residue to J. Arthur Lindsay's "children and heirs at law" did not lapse? The situation can be no different because J. Arthur Lindsay happened to survive the testatrix but died (five years later) without leaving issue surviving.
The bequest having failed by reason of its being "incapable of taking effect" and being "contained in the residuary clause of such will", it follows as a necessary corollary that Sec. 15(c) forthwith became applicable. The lapsed residuary share should, therefore, "pass to and be divided among the other residuary devisees or legatees . . . in proportion to their respective interests in such residue", as the statute directs in the circumstances. It begs the question to assume that apro tanto *Page 290 intestacy ensued with respect to the ineffectual bequest to the "children and heirs at law" of J. Arthur Lindsay and thereby conclude that the share of the trust corpus allocated to his line did not fall back into the residue as a failed bequest.
The majority opinion summarily disposes of Sec. 15(c) with the bald statement that "This provision has no application in the present case because there is no devise or bequest 'incapable of taking effect' within the meaning of the statute; section 15(c) of the Wills Act does not affect an undisposed of share: [citing] Knox's Estate (No. 2), 328 Pa. 188, 192,195 A. 34, 35, 36; Rickenbach Estate, 348 Pa. 121, 125, 34 A.2d 527, 529". The Rickenbach case, itself citing Knox's Estate, supra, does contain the statement that Sec. 15(c) "does not affect an undisposed of share". But, that statement is of no conceivable point to our present question which arises from the failure of a bequest in favor of certain nonexistent legatees under aresiduary clause of a will, there being other designated residuary legatees capable of taking.
Knox's Estate has no bearing on the question here involved.There was no legacy to lapse in Knox's Estate and, therefore, none lapsed. It so happens that Sec. 15(c) was urged upon this Court in that case, but, in the very nature of the circumstances there present, Sec. 15(c) was not properly invoked. Consequently, the decision in the Knox case does not, nor could it have been intended to, constitute a construction or application of Sec. 15(c). It is true that, in answering the fallacious contention there made, that there was a bequest to Hugh which was "otherwise incapable of taking effect" and which accordingly failed, this Court did say that ". . . this bequestdoes take effect; it passes to distributees designated by theintestate law, and therefore does not go to the [testator's] three surviving children alone; it is not a lapsed legacy". (Emphasis supplied.) Of course, that statement could not have been intended to *Page 291 mean that there was a bequest under the Knox will of a lapsed legacy which took effect as a testamentary disposition "to distributees designated by the intestate law". The intestate law, as is well known, operates wholly independently of and never in relation to a testation. Consequently, a testamentary distribution by virtue of an intestacy could hardly have been contemplated as having prevented a legacy from lapsing. This Court's meritorious answer to the contention made in the Knox case was that there was neither a devise nor a bequest to Hugh or to any one of his line after his death. In short, there was no bequest to lapse. What was said in that case is, therefore, not presently in point in any event.
The devise in dispute in the Rickenbach case was specifically held to have vested in the named devisee (a daughter, Viola) upon the death of the testatrix subject to possible divestment later in favor of after-born children of Viola should she die before a sale by trustees could be made of the devised property and the proceeds distributed. Viola died without leaving children but left surviving a husband who took her share as her devisee. Obviously, Sec. 15(c) was of no bearing in that situation, and the statement in the Rickenbach case that "It [i. e., Sec. 15(c)] does not affect an undisposed of share" was but obiter gratuitously laid upon Knox's Estate. True enough, Sec. 15(c) "does not affect an undisposed of share". That is necessarily and uniformly so. Sec. 15(c) is applicable only to cases of failed or void devises or bequests of parts of theresiduary estate and you never have an undisposed-of share in the case of a will containing a general residuary clause. Why a failed or void bequest of a share in the residue was formerly distributed according to the intestate law was because of the peculiar English rule which the second sentence of Sec. 15(c) was specifically inserted to offset as we shall hereinafter see. *Page 292
The majority appear to find implied confirmation for their conclusion in the changes wrought in existing law1 by Sec. 14(9) and (10) of the Wills Act of 19472 (effective January 1, 1948), emphasizing in that connection, as an apparently controlling change, the addition of three words — "is undisposed of" — made by Sec. 14(9) of the new Wills Act. Presumably, the amendatory words were inserted as a concession to the statement in Rickenbach's Estate, supra, that "Section 15(c) of the Wills Act of 1917 . . . does not affect an undisposed of share". But, however that may be, Sec. 14(9) of the new Wills Act by its terms has to do with lapsed and void devises and bequests "notbeing part of the residuary estate", while the instant case is concerned with a bequest which is included in the residuaryclause of the will. It is clear, therefore, that Sec. 14(9) of the new Wills Act affords no argument relevant to the question here involved.
It is Sec. 14(10) of the new Wills Act which contains the provision cognate to a bequest "included in [the] residuaryclause of the will", such as we have here. And, while Sec. 14(10) makes some changes in existing law, it is not because of their effect that the J. Arthur Lindsay share in the trust estate would go to the surviving residuary remaindermen had the testatrix died after January 1, 1948. The rule of law that will work such a result under the new Wills Act is that portion of Sec. 14(10) which carries forward unchanged the pertinent provision of Sec. 15(c) of the Wills Act of 1917. In other words, if the surviving residuary remaindermen would take the J. Arthur Lindsay share in the trust estate under the present will (assuming the testatrix died after January 1, 1948) by virtue of Sec. 14(10) of the new Wills Act, as the majority opinion implies would be the case, then, on a parity of reasoning, the residuary *Page 293 remaindermen should now take the same interest under Sec. 15(c) of the Wills Act of 1917. The new Wills Act has not made anypresently material dispositive change in existing law as a comparison of the statutes will readily disclose.
Thus, Sec. 14(10) of the new Wills Act provides that "When a devise or bequest [lapsed or void] . . . shall beincluded in a residuary clause of the will and shall not be available to the issue of the devisee or legatee under the provisions of [the favored relative] clause [ante] . . ., and if the disposition shall not be otherwise expressly provided for by law, it shall pass to the other residuary devisees orlegatees, if any there be, in proportion to their respectiveshares or interests in the residue". (Italics supplied for identification later.) The comment at page 56 of the report of the Joint State Government Commission (1947) states that Sec. 14 (10), as above quoted, "replaces the second sentence of Sec. 15(c) of the 1917 act, . . .". The comment then states that the added words ("shall not be available" etc. under the "favored relative" clause) "give statutory recognition to the conclusion of Desh's Est., 321 Pa. 286, which held that other residuary shares are not increased so long as issue of the favored relative survive the testator". But, the "favored relative" clause is not material to the facts of the instant case, so the first added clause furnishes no pertinent argument even by implication. Again, the other words of Sec. 14(10) which also are new (viz., "if the disposition shall not be otherwise expressly provided for by law") merely specify a contingency in the event whereof Sec. 14(10) will not become operative. And, by like token, that clause adds nothing materially dispositive to what the existing law (Sec. 15(c)) already contains. Eliminating, therefore, the specified new clauses of Sec. 14(10) (which have no bearing on our present question), it will be seen that the new Wills Act (Sec. 14(10)) provides what in material regard the above-italicized portions embrace, viz., *Page 294 "When a devise or bequest [lapsed or void] . . . shall be included in a residuary clause of the will . . ., it shall pass to the other residuary devisees or legatees, if any there be, in proportion to their respective shares or interests in the residue", which is precisely the same as the second sentence of Sec. 15(c) of the Wills Act of 1917 now provides, viz., "In any case where such devise or bequest which shall fail or be void, or shall be revoked as aforesaid, shall be contained in the residuary clause of such will, it shall pass to and be divided among the other residuary devisees or legatees, if any there be, in proportion to their respective interests in such residue".
Unfortunately, this Court's present ruling brings about the very situation which Mr. Justice MITCHELL, upon a former occasion, so vividly and forcibly denounced in Gray's Estate,147 Pa. 67, 74-75, 23 A. 205, as being the result of an irrational rule, and which the second sentence of Sec. 15(c) of the Wills Act of 1917 was designedly enacted to obviate: see Note at page 69 of the Report of the Commission to Codify and Revise the Law of Decedents' Estates (1917). While, ordinarily, a lapsed legacy has always fallen into the residuary estate, the English rule, formerly followed in this State, was to other effect where the legacy which failed was itself a part of theresidue. In such event, an intestacy pro tanto occurred and the quantum of the legacy went to the next of kin. The rationale of the English rule, which Mr. Justice MITCHELL characterized "as wrong in principle and subversive of the great canon of construction, the carrying out of the intent of the testator", lay in the sophism that residuary legatees are "given specific portions of the residuum, and [can] not take more by the intent of the will . . .". As to that, the same learned Justice said (p. 74), — "The rule thus established does not commend itself to sound reasoning, and is a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of *Page 295 his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all".
The instant case peculiarly gives point to the above-quoted authoritative observation. Here, the testatrix, after cutting off her brother and his line of descent with a five dollar bequest to him, gave one-half of the residue of her considerable estate outright to her two sisters in equal shares. The remaining one-half of the residue she placed in trust with the directions to the trustee to pay the income therefrom to her two sisters or the survivor of them for life and, upon the death of the survivor, then to her four nephews (being the sons of the same two sisters) for their lives with the provision that one-fourth of the corpus of the trust estate should be distributed among the children and heirs at law of a nephew upon his dying "leaving lawful issue surviving". Thus, the testatrix clearly indicated her testamentary intent that the residuary trust estate should ultimately be distributed among the children and heirs at law of persons in the line of descent from her two sisters and, on the other hand, demonstrated an equally clear intent that her brother and those claiming under him should not participate in the distribution of the residue of her estate. The vice of this Court's present decision lies not only in the fact that the children and heirs at law of the testatrix's nephews will not receive aggregately in remainder the entire residuary trust corpus but also in the further fact that the estate of the deliberately excised brother will receive under the intestate law an inheritance of more than ten thousand dollars from the estate of the testatrix. It would be difficult to imagine a more classical illustration of the kind of situation which Sec. 15(c) of the Wills Act of 1917 was designed to correct: cf. Thompson'sEstate, 304 Pa. 349, 355, 155 A. 925. *Page 296
Accordingly, I think the decree should be reversed with directions that the fund in controversy be "divided among the other residuary devisees or legatees" (i. e., the "children and heirs at law" of the testatrix's nephews) "in proportion to their respective interests in such residue".
Mr. Justice LINN and Mr. Justice PATTERSON join in this dissent.
1 Sec. 15(c) of the Wills Act of 1917.
2 See footnote 2 of the majority opinion.