This is the question to be decided: Where both a daughter by name and a son by name are given a certain defined share of income of the residuary estate held in trust for four children by name, to whom does the income released by the respective deaths of this daughter and son pass, the will being silent on the subject, though, upon the death of the survivor of testator’s four children, the trust is to continue for the benefit of grandchildren and their issue until the death of all grandchildren alive at time of testator's decease ?
The Auditing Judge held that an intestacy as to the income earned by the principal of these two shares resulted from testator’s failure to provide for such contingency. The exceptions, twenty-five in number, filed on behalf of a remaining child and the three children of a deceased son, claim that the will shows an intention to create a survivorship in such income for their benefit, and for them alone, thus ignoring entirely the claim of the one child (granddaughter) of the one deceased daughter, and the one child (granddaughter) of the other deceased son.
The Auditing Judge quotes in full the items of the will relating to the trust and all other facts essential to a proper understanding of his conclusions. It is possible, however, that a further brief statement may be necessary to clarify the existing situation.
When, in 1893, Samuel H. French executed his will, he had four children, all of whom survived him. These children were Howard B. French, who had one child; Mary Harriet, who was single and still is; Emmor D., who had three children; and Clara Angelina, who was then unmarried. Conditions were not changed when he made the codicil. Clara Angelina afterwards married, in 1894, some eight months prior to the death of her father, the testator.
Testator died in 1895.
Clara Angelina, a daughter, died in 1901, survived by one child,.Gnade B. Jakob, who is now of age.
Emmor D., a son, died in 1904, survived by three daughters.
Howard B., a son, died in 1924, survived by one daughter.
*69As before stated, Mary Harriet is living and unmarried.
While three executors were named in the will but two qualified. They were not required to account, and, therefore, never did.
Upon the death of the survivor of the executors and trustees, Howard B. French, Fidelity-Philadelphia Trust Company was appointed succeeding trustee, and its account — the only one ever filed in the estate — is filed apparently for the express purpose of having the court determine who are entitled to income.
In considering the question raised by exceptants, it appears that nowhere in the will are the children treated as a class. Any grouping which would otherwise indicate a class refers to them as the said children. As a class, they were never in testator’s mind — as expressed in the will.. Grandchildren are in some instances treated as a class, especially with reference to the continuance of the trust.
Under certain conditions, dependent upon the amount of income, all of the four children, except possibly Clara Angelina, were to participate equally therein. She, Clara Angelina, given a preference by will in the sum to be paid her each year, had the amount thereof increased by codicil made before her marriage.
While the general trust was to continue for the benefit of grandchildren, after the death of all of the children, a majority of the children, if such majority deemed it best, was authorized to dissolve the trust, except, however, as to the share of Emmor D. French, a son. The trust as to him was to be absolute, and on his death the income was to be paid unto his children, with right of survivorship: see Item Seventeenth.
This item is suggestive in this: It shows conclusively that testator knew how to provide for succession in receipt of income as to grandchildren, when it was his purpose so to do, and that he recognized survivorship in income (at least so far as his own will was concerned) was not a matter to be left to implication, but that it was necessary to be set forth in express terms.
As to the other three children, no provision whatsoever is made as to the destination and distribution of income when and as such children died; nor is there anything in the will helpful to a ruling on the question.
It would seem that Grothe’s Estate, 229 Pa. 186, wherein the widow, son and grandson were each to have one-third of the income for life, and if the widow remarried, the other two were to take all, is of moment in reaching our conclusion. The trust was to endure for the longest liver of the three. Two died, and the grandson claimed all of the income. What was said by Mr. Justice Mestrezat, speaking for the Supreme Court (pages 190-91), is peculiarly in point: “The corpus of the trust fund is to be distributed at the death of the grandson. There is, therefore, no ground for the contention of the grandson to be be found in the express language of the will that, since the death of the widow and son, he is entitled to the whole income during the life of the trust. His right to the income rests wholly on the doctrine of an implied gift or cross-limitation. But this must arise from the language of the will, and unless there is a clear implication that such limitation was intended by the testator, the fund cannot be taken from the heir and disposed of through another channel of distribution. The gift of the income is not to a class, but to the three beneficiaries nominatim; neither is it a joint tenancy with the right of survivorship. The plain language of the will vested the income in the three individuals respectively until the death of the son and the grandson and the death or remarriage of the widow. Whether intentionally or otherwise, the testator did not dispose of the income after the life estate *70given to the three individuals, and, therefore, there is no reason to suppose that he intended that the survivor should take the whole income until the distribution of the corpus of the trust fund, unless the presumptive intention to avoid an intestacy should disclose such purpose. This, however, is not a sufficient reason for implying a gift or a cross-limitation. If it was, no intestacy would ever occur.”
In holding in the instant case that there is an intestacy, the rights of the one remaining child, as well as the three grandchildren who take the shares of income given them by the will on the death of their father, are preserved and safeguarded, and they, as well as the other two grandchildren, participate equally, per stirpes, in the income not given by the will.
As we agree with the Auditing Judge in his construction of the will, all exceptions are accordingly dismissed and the adjudication is confirmed absolutely.
Thompson, J., did not sit.