The question raised by the exceptions arises over the share of Danforth Phipps Wight, who was a brother of Edward P. Wight and George Richards Wight, the remaining beneficiary, Barrington Wight, being a cousin; and the clause of the will which gives rise to the discussion is as follows: “Sixteenth. All the rest, residue and remainder of my estate, whether real or personal, I give, devise and bequeath to such of my four nephews, Danforth Phipps Wight, Edward P. Wight, George Richards Wight and Barrington Wight, as may be living at the time of my death, and the descendants then living of any of them that may be then deceased, per stirpes, upon the principle of representation, to have and to hold the same to them, their heirs and assigns forever, as tenants in common and not as joint tenants; the share of Danforth Phipps Wight to be held by my Executors and Trustees, In Trust, to invest the same in good and safe securities, not confining my Trustees and Executors to what are known as Legal Investments, and to pay the income therefrom in equal quarterly instalments unto my .said nephew, Danforth Phipps Wight, for and during the term of his natural life, In further trust, upon his death to pay, assign, transfer and set over the principal of his said share unto such of his brothers as may be living and the descendants then living of such of his brothers as may then be dead, in equal shares, per stirpes, upon the principle of representation.”
Danforth Phipps Wight died on Aug. 25, 1920, during the lifetime of the testatrix; indeed, he died prior to the execution of her will, which is dated March 31,1921, and the auditing judge held that his distributive share passed to his two brothers, Edward and George, to the exclusion of Barrington, on whose behalf it was argued that the residuary estate should have been awarded in equal third parts to the three surviving nephews, as the gift was to such of the four nephews as might be living at the time of the death of the
A majority of the court agree with the construction placed upon the will by the auditing judge. The testatrix divided her residuary estate among her four nephews, substituting the descendants of any one of the nephews who should not be living at the time of her death, and then, as Danforth had.no issue, desiring to make a separate provision as to his distributive share, she bequeathed it in trust to pay the income to him for life, with remainder to his brothers. As pointed out by the auditing judge, the question is not whether the legacy vested in Danforth, as no legacy can vest until the death of the testatrix (see Cooper’s Estate, 13 Dist. R. 127), and in order to provide against a lapse in the event of a beneficiary dying in her lifetime, the testatrix was careful as to the shares of Edward and George and Barrington to substitute their respective descendants; but in the case of Danforth, who had no issue, she gave the remainder interest to his brothers. See May’s Appeal, 41 Pa. 512; Fahnestock’s Estate, 147 Pa. 327; Bruner’s Estate, 14 Dist. R. 124; Crawford’s Estate, 18 Dist. R. 594; Janney’s Estate, 28 Dist. R. 24.
The exceptions are dismissed.