dissenting. — The one question raised by exceptant is whether the executrix of the will of a son who survived testator, but died childless during the life of the cestui que trust, is entitled to a share of principal as coming within the designation of “other children” in the codicil to testators’ will, which codicil reads as follows:
“My daughter Florence’s share is to be invested and she to have the income of the same during her lifetime, at her decease the principal sum is to be equally divided among my other children, should any be deceased leaving children said share is to be equally divided among them.”
The Auditing Judge divided the fund in equal shares among one surviving child and children of two deceased children, ruling that the estate of the son (who, while surviving his father, is now dead and without descendants) was not entitled.
It is contended that the codicil, read in connection with the residuary clause of the will, shows a clear intent to vest the entire estate in the children, as of the date of testator’s decease; on the other hand, it is claimed that the date of the death of the equitable life tenant fixes not only the time of distribution but also determines the class which is to take.
For the sake of clarification, certain facts should be set forth in detail.
Joseph C. Buekman died in 1919. His will was made Oct. 8, 1894. After giving the income to his wife for life, this disposition was made of the residue:
“And as to all the residue and remainder of my Estate, real, personal or mixed of whatsoever nature or kind, or wheresoever situate at the time of my said wife’s decease I do hereby give, devise and bequeath to be divided in equal shares amongst all my children or their heirs.”
On Dee. 1, 1914, he made the hereinbefore quoted codicil with reference to his daughter, Florence.
At the time of the making of this codicil the daughter, Florence, was unmarried and insane. Her then mental condition would seem to be the reason for the change in the will. There were then living four children, as well as the wife. One of these children, Jennie, predeceased testator, dying Jan. 11, 1918, survived by two children, J. Walter and Caroline, and by a husband, Emmor T. Watson. The wife also died in the lifetime of testator.
All of his estate has been distributed in four equal parts among three sons, Walter R., J. Morris and Harry L., each one-fourth, and two grandchildren, the issue of the daughter, Jennie, who died in decedent’s lifetime, and who took their parent’s one-fourth.
*657One of these three sons, J. Morris, has since died; he leaves no issue. His wife, however, survived him. He bequeathed to her his estate and made her executrix of his will.
Florence, an inmate of the State Hospital at Norristown, died Aug. 6, 1927, and we are concerned with the proper distribution of this one-fifth of the estate directed to be retained for her benefit for life.
Testator’s original purpose was to send his estate down the line of his descendants, excluding every one else. This is manifested by the gift of the residue in equal shares to his children. There was no reason for him to add that, in event of any of them dying in his lifetime, their children were to take in their place and stead. The law attended to that: Section 15 (a) of Wills Act of 1917. The law, however, nowhere provides that where a married child shall die in the lifetime of testator, a surviving spouse shall participate; participation is limited to the issue of the deceased legatee.
When testator eliminated Florence’s share by confining it to income, he did not follow his intention as contained in the will, but, on the contrary, decreed a division among his other children and the issue of any who were dead. There was a reason in this; it was to exclude (as does the law with reference to the will itself) those not of his blood, and to include those who were, by an alternative gift to children of his deceased child or children. The codicil had taken away from her the corpus of the estate, which, had it been hers, would have passed from her to her living brothers, and to the descendants of those then deceased, but would have ignored those dead without leaving issue.
It was unnecessary for testator to use the word “then” (an adverb of time), where the context showed that “then” (as an adverb of time) was meant. “Other children,” if living, were to take; if dead, their children were substituted; but no provision was made for other children who were at the time deceased and had no issue then surviving.
The matter has been ably argued and numerous briefs submitted. There are many authorities in point, some “pro” and some “con,” but when all is said and done, precedents are of little moment, in arriving at intention, where, as in the instant case, a comparison of the original will with the codicil demonstrates that testator’s expressed intent was to benefit his children; in the alternative, their descendants, and none others.
The thought is well expressed in Long’s Estate, 270 Pa. 480, 487, where the present Chief Justice says: “We need only say, of the many authorities cited to us by counsel, that ‘precedents are of little value in the construction of wills, because, when used under different circumstances and with different context, the same words may express different intentions. 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 avail. 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.” See, also, Reiff v. Pepo, 290 Pa. 508.
The Auditing Judge stressed Berg’s Estate, 96 Pa. Superior Ct. 125, a case in some respects analogous to this, wherein, as in this, there was no antecedent gift independent of the time fixed for payment, and where it was held that the gifts in remainder were contingent and not vested.
Carstensen’s Estate, 196 Pa. 325, does not seem to me to be in point, because there the court dealt with an outright gift. Here we have a will, wherein there is a gift to all the children; and a codicil, wherein there is no gift, but merely a direction to divide upon the death of the cestui que trust. They *658must be read together. Testator naturally expected his daughter, Florence, to survive him; otherwise there was no reason for the creation of the trust; and in expectation of such survivorship, he in effect revoked the legacy in her favor and provided for a distribution of the corpus of her share, effective upon her decease, by directing a division of same among his other children and the issue of any deceased. The only gift is in this direction to divide, and for that reason the class who were to take could not be definitely determined until her death, and the widow of the son who was at this time deceased did not form a member of the class.
For these reasons, I would dismiss the exceptions.
Judge Van Dusen concurs in this opinion.