dissenting. — The exceptions of Edward Samuel, Jr., should be sustained involving the failure of the auditing judge to award him his share as issue of a child of the testator, his father having survived testator but predeceased the life tenant.
The learned auditing judge and the learned majority opinion err when they hold that “the substitutionary gift to the issue of deceased children is to be construed in the usual way as applicable only to the issue of those children who may die before the testator.” They fail to apprehend that the substitution here is not of a legacy, but involves the substitution of a limitation over after a life estate. This distinction is clearly defined by Ashman, J., in Breese’s Estate, 2 Dist. R. 364. There, after a life estate to his widow, testator gave a one-seventh part of his estate to his brother Sidney Breese “or in case of his de*293cease, to his surviving children”. Sidney predeceased the widow leaving four children, one of whom, James B. Breese, afterwards died in the widow’s lifetime. The court held that:
“If the gift to him, and, in case of his death, then over, had stood by itself, the period of his death would have referred to the lifetime of the testator, and the legatee, having outlived the testator, would have taken absolutely. This construction is one of necessity, no other time than the lifetime of the testator being of possible assignment in such a case. It is open to the objection that a testator rarely anticipates the death of a legatee or devisee before his own; and it will not be adopted when, by reason of any provision in the will, another period can be taken as the period of death. When, therefore, a gift of a particular interest in the same property precedes the gift to the person of whom the death is predicated, that event will be construed to mean a death in the lifetime of the particular estate: Smith’s Ex. Int., §658 . . . the gift to the children was not a remainder nor a limitation qualifying their fee; it was an alternative or substituted gift, which took the place of the estate of Sidney, the first taker, when that expired by reason of his death during the continuance of the life estate.”
The leading case on such substitutionary gifts over is Carstensen’s Estate, 196 Pa. 325. Justice Mestrezat there said (p. 335) :
“The testatrix in her will makes an absolute bequest to her brothers and sisters and then is added the clause: ‘the child or children of any of my said brothers and sisters who may then be dead, to take and receive the share that his or their parent would have taken if living’. There is no provision made in the will for the disposition of the interest of any brother or sister who might die prior to the death of the life tenant without leaving a child or children. In such an event, there is no divestiture of the title acquired by the general bequest. But should any of the brothers or sisters die leaving children during the life *294tenancy, the effect would be, under the clause we have just quoted, to divest the interest the deceased parent acquired under the preceding clause of the will. The substituted legacy would thus become complete on the happening of this contingency and the interest bequeathed to the deceased parent would vest in his surviving child.”
Again in Tomlinson’s Estate, 61 Pa. Superior Ct. 23, it was held that although the remaindermen took vested interests at the decease of testator, their interests were subject to be divested in case of their decease during the pendency of the life estate; citing Burk’s Estate, 21 Dist. R. 357.
Therefore the exceptions should be sustained in favor of the issue of a child who died leaving issue.
Klein, J., concurs in this dissenting opinion.