Lennig's Estate

Lamorelle, P. J.,

dissenting. — Having provided for his widow, his children and certain of his grandchildren from a trust of his residuary estate, testator bequeathed a large part of such residuary estate, upon the termination of the trust, for enumerated charitable and educational purposes. Evidently realizing that these gifts might not exhaust the estate, he thus disposed of the excess, if any:

“Any balance remaining upon the completion of the aforenamed devices, I direct and order my Trustee to distribute and pay over Share and Share alike amongst and to any of my legal descendants then living the Sons and daughters of my daughter Williamina Thudieum and Joyeuse Amoys, my Sons Nicholas and John Bouligner Lennig and none others. . . .”

The trusts have terminated and there being a “balance,” the Auditing Judge, in making distribution, includes as distributees two great-grandchildren, Eleanor Mary Arnois and Charles Lennig Arnois, issue of Alexander Arnois, a deceased son of a deceased daughter. He would have taken if alive, but he died in 1920.

Exceptions to this ruling are dismissed in the majority opinion.

I find no warrant for such construction of the will, and I, therefore, file this dissent.

*58I know of no'case where “sons and daughters” have been held to mean anything other than sons and daughters, nor do I know of any case where, in a gift to.living children, grandchildren have been allowed to participate along with them, except in a few isolated instances, wherein the context was such that escape from such decision was practically impossible.

In Page’s Estate, 227 Pa. 288, Judge Penrose (at page 289), speaking for this court, enunciates the well-known principle: “Campbell’s Estate, 202 Pa. 459, was not intended to change the well-settled principle of interpretation that, in the absence of evidence of a contrary intention afforded by the will itself, a gift to ‘children’ will not be understood as including any more remote class of descendants.”

In the case cited there was a trust of two-sixths of the residue for a nephew, James F. Breuil, for life, and upon his decease the corpus was to be distributed among his children living at the time of his death.. James F. Breuil had two sons; one of them died in the lifetime of his father, leaving a child, great-grandnephew of decedent. He claimed one-half of the fund on the theory that “children,” as used by testator, included “grandchildren.” In deciding against his contention, Judge Penrose says (at page 289) : “The estate of those entitled at the termination of the life estate is contingent, purely. The gift is to the ‘children’ of the first taker living at the time of his death; and being his ‘child’ is no less an integral part of the description of the person then becoming entitled than is the fact of being then alive.”

His opinion was adopted by the Supreme Court.

Unless, therefore, in the instant case the context shows a broader intention, the present case is ruled by Page’s Estate, supra.

What context have we? Following so much of the clause above quoted, the will continues: “. . . and in default of any such claiming and proving their interest within One Year after three months’ Summons in Six of the principal News Papers of this City and New York, then the said balance to be divided and paid Share and Share alike one half to the Trustees of the University of Pennsylvania to be invested for the use of the Free Scholarship Fund aforenamed, the other half to be divided one half to the use of the German Hospital and the balance to the Pennsylvania Hospital of Philadelphia.”

To my mind, this mandate is not only insufficient on the facts of the case to justify the construction that it showed an intention to embrace grandchildren, but such construction is misapplied, because in the very clause itself testator used the words “any such claiming. . . .” “Any such” can have but one meaning, and that is: “Sons and daughters of my daughter Williamina Thudicüm and Joyeuse Arnoys, my Sons Nicholas and John Bouligner Lennig and none others. . . .” The mere fact that testator desired that if none of his grandchildren could be located within a given time, such shares as they would otherwise take should pass to certain charities, etc. — the first object of his bounty, so far as the major portion of his residuary estate was concerned — is not a compelling reason why the class should be enlarged by adding those not mentioned, and, therefore, presumably not to be included.

I regard the words, “the Sons and daughters,” etc., as in apposition with the expression “my legal descendants then living. ...” I fail to see that either phrase is intended to or does restrict the other; they are not in conflict. The gift is to my legal descendants, being the living children of four of my children. Amois, a child of the daughter, Joyeuse, could not take, for when the trust finally ended he was dead, and on the day of his death he effaced himself from the class, which class was limited to then living descendants, sons and daughters. How, then, may his two children (great-grand*59children of testator) take? They cannot take through their father; his rights ended with his death; they cannot take by substitution, for this is a class legacy. Nowhere in testator’s will is there any reference to great-grandchildren; he had in contemplation his wife, his children, his children’s “sons” and “daughters,” the charities, the educational scheme, and no more. And of the many descendants testator might possibly have, this “balance” was to be distributed in terms among living sons and daughters of four of his children. Neither language nor intention could be plainer nor more exact. It is, of course, possible that by the words “none others” he meant no more than to exclude the “sons and daughters” of his deceased daughter who married William Fullerton; it is, however, equally possible that the obvious meaning of these words should prevail, i. e., as indicating distribution among certain specified sons and daughters to the exclusion of more remote descendants; the context surely justifies such conclusion; but ignoring entirely the words “and none others,” I find no warrant for including descendants other than those in so many words designated. The doctrine or principle of “potential intestacy” has no application in the instant case. Wherein there are contingent remainders, with no limitation over, there is always the possibility of intestacy. But, if in fact, upon the death of the testator or at the time fixed for distribution, it is ascertained that no actual intestacy results, such possibility, to wit, that it might have existed, does not justify a distribution into which this possibility enters as a factor in determining who shall take. Moreover, in the instant case there is a limitation over, and because of such fact, in no event could there be an intestacy.

In short, I find nothing either contradictory or doubtful in this particular dispositive clause, and, therefore, nothing requiring interpretation or construction; and for these reasons I am of opinion that testator’s expressed intention should govern.

I cite an authority which to me, by analogy, seems to be directly in point: Mifflin’s Estate, 3 D. & C. 638; 279 Pa. 429. Testator had given his residuary estate unto “such of my four nephews,” by name, “as may be living at the time of my death, . . .” and on the death of one named nephew it was provided that his share should be held in trust for life, with remainder at his death to such of his brothers as might then be living, and the issue of such as might then be dead, per stirpes. Three nephews survived testator; but the one nephew whose brothers took on his death died in testator’s lifetime. This court awarded one-fourth to these brothers, despite the fact that as this brother did not survive testator he took nothing, and, therefore, nothing could pass from him. In reversing, Mr. Justice Schaffer said (at page 432) : “If the original gift be, not to the class generally, but to such of them only as survive the testator, a contingent gift engrafted thereon in case of the death of any of them can only mean death happening after the death of the testator: 2 Jarman on Wills (6th ed.), 705.”

“This is the sort of will that is construable from its language alone. As we said in Long’s Estate, 270 Pa. 480, 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 had used the same words with a different meaning is of no avail. Neither precedent nor rules of construction can overcome the testator’s expressed intent.’ Tested by this standard of the testator’s actual expressed intent as manifested from the words of the will, we find that the devise was to ‘such of my four nephews (naming them) as may be living at the time of my death/ and such an one Danforth was not, as he was not alive at the time of her death:” Mifflin’s Estate, 279 Pa. 432.

*60To paraphrase, testator gave this balance to such of his living descendants as are sons and daughters of his four named children: and therein is the analogy. Those only of the sons and daughters who are alive when the trust terminates may take. The one son (child of Joyeuse) was not then living; nothing passed to his issue because he was not a member of the specified class — and there was no independent gift, nor one by substitution.

No thought of great-grandchildren appears anywhere in the will. Why, then, should we depart from well-settled principles to benefit great-grandchildren at the expense of sons and daughters of children, to whom alone testator says he intends this “balance” to be given? His intention was to limit the class, not to enlarge it. Why strive for a presumed intent; sons and daughters of children are liable to migrate and to disappear, as well as more remote issue.

I would divide the fund among the four living sons and daughters of the four children, per capita, and dismiss all exceptions inconsistent with this ruling and sustain all others.