dissenting. — The gift here was not to four nephews by name, but to such of four named nephews as should be living at the time of the death of testatrix.
There was a substitutionary gift to the descendants of any that might then be deceased. There was no substitutionary gift of the share of Danforth Phipps Wight; there was, however, a provision that his share should be held in trust, with limitation over upon his death.
He, however, died in the lifetime of the testatrix; therefore, he never had nor could he have any share, in that his death eliminated him from the category “such of my four nephews.” As his share never existed, those who succeed upon his decease to his share necessarily take nothing. As to the three nephews, there was a substitution in event of. their death in the lifetime of testatrix; as to Danforth, there was no substitution whatever in event that he died in his aunt’s lifetime, and therein lies the whole pith of the case; his death and their life reduced the group to three.
To construe the will, as did the auditing judge, and in the way approved in the majority opinion, the phrasing should be “to my three nephews (naming them), and to my executors, in trust, for my remaining nephew (naming him) and, in event that any of the four predecease me, then, as to three of them their descendants are to take, and as to the one for whom the trust is created, his share is to be paid to his two brothers.” This testatrix does not say, nor can her intention to thus dispose of her estate be found in the will, save in a paraphrase, which, to my mind, distorts the meaning of its language. There can be no acceleration by death, unless there is something to accelerate; here, because of the non-existence of Danforth Phipps Wight when the will became effective, those who answer the description or designation of “such of my four nephews” were the three named living nephews, his two brothers and one cousin, and, as I interpret the will, they are each entitled to one-third of the residuary estate.
In the recent case of Long's Estate, 270 Pa. 480, it is said by the present Chief Justice (at page 487): “When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same words with a different meaning is of no *641avail. Neither precedents nor rules of construction can override the testator’s expressed intent (Redding v. Rice, 171 Pa. 301, 306); and this, in the present case, the court below correctly found from the will.”
But even if I found myself bound by the authorities, none of those referred to in the brief submitted in support of the adjudication, nor any that I have found, seem to me to be in point. I have no dispute with the cases which hold that a substitutionary gift is effective in event of death of the first taker, nor ■with the proposition that a remainder dependent upon a life estate is good, although the life estate failed because of the prior decease of the life-tenant. Such cases, however, are without application here, for, in the instant case, testatrix did not give to four nephews at all, but to such of the four as should be living at the time of her death, and there were but three who could bring themselves within the selective group, and because of this fact, they take all.
Examining the cases quoted, what do we discover? In May’s Appeal, 41 Pa. 512 (on which great reliance is placed), the gift was to grandchildren, and in event of their death, their share was to be paid to their mother. A grandchild predeceased testator, and it was held, and properly so, that the mother took the alternative gift. So, in Bruner’s Estate, 14 Dist. R. 124, the death of the first taker, to whom a gift was made, with remainder over, was held to be immaterial, and its only effect was said to accelerate the remainder so given. And again, in Crawford’s Estate, 18 Dist. R. 594, the gift over was held to be in the alternative.
In short, in all of these cases — those analyzed as above, as well as Janney’s Estate, 28 Dist. R. 24; Roberts’s Estate, 2 D. & C. 347; Fahnestock’s Estate, 147 Pa. 327 — there was no lapse because there was a provision in the will that in case of death the share was to pass in the alternative to a person or a class; while here, when testatrix died, there were, as stated before, three living persons who brought themselves within her designation of “such of my four nephews as may be living at the time of my death,” thus excluding from participation the one then dead: the effect of his death was obliteration, not succession.
And for these reasons I would sustain the exceptions.