concurring. — The dissenting opinion disavows the application in the majority opinion of the well-known and often-applied principle of law that a fee once given will not be cut down by subsequent language “unless the intent to do so is clear”. In my opinion not only is the maxim applicable but the case eminently illustrates its wisdom. Testator’s “subsequent” language is not clear; it does not expressly or impliedly refer to the contingency which has occurred, we are faced, therefore, not only with the doubt as to the vesting or contingency of the fee as pointed out in both opinions, but also with the inconceivable proposition that this testator intended to be entirely callous to the welfare of his wife during the indefinite period of the administration of his estate as defined in the minority opinion. There is no provision, short of complete disherison of her interest should she not survive that period — no provision for her maintenance, or for possible emergency requiring expenditures of large or small sums of money. It is incomprehensible that he meant she should be destitute for even one day, not to speak of months or possibly longer. Could he have intended that should she, prior to her death, transfer a large portion of the registered investments to her name and sell others to provide funds to prevent her from becoming a public charge, and now her estate should disgorge the transferred securities and reimburse testator’s estate for all sums of money spent for her support? All for what purpose? For the benefit of the substitutionary legatee! I am sure that had this testator realized the import of this attempt to “cut down the fee” he would not have tolerated this experimental play with future events or with phrases attempting to describe them. The majority opinion *168therefore has not merely abstractly applied an artificial rule of construction but is fulfilling the real intent of testator.
An important element in this class of case has not been considered. That is the real estate, which is just as much a part of the estate as is the personalty, although title to it is derived in a different manner from that of the personalty. When and how did testator intend the real estate should be “settled”? Did he have a dual intent, that settlement of real estate was to be distinct from that of his personal property? That the condition of “settlement” did not apply to the realty, and therefore the fee in his widow became absolute immediately upon his death and only the personalty should be subject to the substitutionary provision? Or did he mean that, in the contingency, all of his property — both classes — should go to the alternative beneficiary? The burden of satisfactorily answering such questions rests upon exceptant and in my opinion has not been successfully met. Such failure adds to the confusion and uncertainty involved in construing the disputed “cutting down” provision.
For these reasons as well as those contained in the majority opinion I concur in the conclusion reached in that opinion.
NOTE. — The foregoing decree was reversed by the Supreme Court on May 10, 1943: Wraught Estate, 347 Pa. 165.