Gunning's Estate

Opinion by

Mr. Justice Potter,

These appeals are from the same adjudication as that *146from which Miller’s appeal was taken, in which we have just filed an opinion afiirming the decision of the orphans’ court, holding that the gift to Karl F. Miller under the will of Anna M. Gunning, failed because the condition prescribed by the testatrix, upon which it was to vest, was not fulfilled at the time when the will became effective. In this adjudication the orphans’ court further held that as the gift to Miller failed, the limitations over as to one-half of the estate, in favor of the Greer and Blackford children, also failed. The auditing judge held that an intestacy resulted, and he awarded the fund to those entitled under the intestate law. Exceptions to the adjudication were filed on behalf of the Greer and Blackford children. The exceptions were dismissed by the court, and these appeals were taken from the decree of dismissal. Counsel for appellants contend that the fund should have been awarded to them as remainder-men. But clearly the estate bequeathed to appellants in the will is a contingent remainder. It is contingent in the first place upon the fact that Karl F. Miller shall not be 'living with his wife when the will takes effect. And secondly, on the fact of his dying unmarried a second time, without children. These were uncertain events, and the first contingency, viz., that Karl F. Miller should not be living with his wife, was a condition precedent to the vesting of his legacy. As a matter of fact, this contingency did not occur, and it never can happen. In McCay v. Clayton, 119 Pa. 133, referring to a contingent remainder, Mr. Justice Paxson announced a familiar principle when he said (p. 139): “Such a remainder can only exist where it has a particular estate to support it. With the destruction of the particular estate the contingent remainder necessarily falls.” The same principle is somewhat differently stated in Page on Wills, sec. 671, thus: “Upon the occurrence of such contingencies as make it impossible for the contingency upon which the legacy is given ever to occur, the contingent interest is absolutely extinguished.” Under these and many other authorities which might be cited, it is *147evident that when the particular estate which was to go to Karl F. Miller failed by reason of his inability to answer the description, or fulfill the requirements of the condition upon which it was given, the contingent remainder to appellants which rested upon it, was without support, and therefore fell. Counsel for appellants, however, urge that the gift was accelerated, and in support of their view they cite the decision in Fletcher v. Hoblitzell, 209 Pa. 337. But in that case the remainder was vested, and was not contingent, the devise over taking effect upon the death of the life tenants. In the opinion of Mr. Justice Mestrezat, he refers to and cites (p. 344) the rule given in 24 Am. & Eng. Ency. of Law (2d ed.), 418; but the section from which the quotation is taken refers only to vested remainders. Upon the next page of the text-book, referring to contingent remainders, is this statement (p. 419): “If the gift over is limited to take effect on a particular event and the very opposite or alternative of that event actually happens, the subsequent gift fails altogether, though the prior gift be out of the way.” The principle thus stated covers the present case. The particular event did not happen, and quite the opposite situation arose; that is, Miller was living with his wife when the will took effect. Even had the first condition been met, and the estate vested in Miller, there would have remained another contingency, that of his remarriage, in which case he was empowered to leave all to his second wife and children. Had he remarried and exercised his right of bestowal, these appellants would have had no share in the estate, as the gift to them is only upon condition that Miller dies unmarried a second time, without children. The illustrations of the doctrine of acceleration, cited by counsel for appellants, taken from Jarman on Wills, are cases of vested remainders. No case is cited, and none has been found, where a contingent remainder following a particular estate, given on a condition which has failed, has been held to have been accelerated by the failure of the particular estate to vest, on account of the nonperformance *148of the condition. Where a widow is given a life interest and elects to take against the will, or where, as in one of the cases in Jarman, a monk is given a life estate which he is unable to take, the life tenants are regarded as if dead, and the vested remainders are accelerated accordingly.

But in the case at bar, the interests of the appellants were not vested; they were contingent, and that to a remote degree. Karl F. Miller took no estate, because he did not answer to the description required, and was not able to fulfill the conditions upon which he was to take. It should be remembered that the gift to these appellants does not depend on the nonfulfillment of the conditions prescribed by testatrix, but on th'e contrary it depends upon their fulfillment. No provision was made for the disposition of the fund in the event of a failure to fulfill the conditions; therefore an intestacy results from the failure. The court below so held, and its decree in this respect is affirmed.