(dissenting).
The majority cites Schappell Estate, 424 Pa. 390, 227 A.2d 651 (1967), in support of its claim that the issue of a child who predeceases the execution of the will are entitled to a share of the residuary estate. In Schappell, we said,
“ ‘It is now hornbook law (1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should he resorted to only if the language of the will is ambiguous or conflicting, or the testator’s intent is for any reason uncertain.’ ” (Emphasis in original.)
Id. at 392, 227 A.2d at 652.
A reading of the language used in the challenged will in Schappell Estate showed that testator intended to include within the residuary devise a gift to the issue of his child who had died prior to the execution of the will.
Contrasting the language of the instant will, and the circumstances surrounding its execution, with those factors as they appear in Schappell Estate will illustrate that the decree of the Orphans’ Court should be affirmed.
The factual situation dealt with in Schappell was stated by the court as follows,
“Isaac D. Schappell died in his 80th year on Novemhad been married twice; his first wife was Nora, who ber 2, 1964, leaving a will dated January 27, 1954. He died in 1909, and his second wife Stella, who died in *2571956. Isaac had one child by Nora, a daughter also named Nora. Daughter Nora was born in 1909 and died in 1933, leaving to survive her a daughter Roselyn (now Dunkelberger), who survived both her mother and her grandfather Isaac. Isaac had five children by his second wife Stella. Stella predeceased Isaac but was living at the time he made his will; their five children survived him.
“In Item 1 of his will testator gave a legacy of $300 to his granddaughter Roselyn. He then made the following disposition of his residuary estate: ‘ITEM 2: As to the rest residue and remainder of my estate, either real, personal, or mixed, I give, devise, and bequeath to my dear wife Stella J. Schappell, however should my wife Stella J. Schappell predecease me in death I then give, devise and bequeath the same to my children, same to be divided equally share and share alike, and if any of my children shall predecease me in death, his or her share shall be divided equally amongst their issue.’ ” (Emphasis in original.)
Id. at 391, 227 A.2d at 652.
Two factors, present in Schappell and absent in the instant case, indicated testator’s intent to include the issue of his daughter Nora: (1) he expressly recognized Roselyn’s presence in “Item 1”; (2) the record indicated that the testator’s relationship with Roselyn was “harmonious.” Additionally, testator in Schappell referred to the class to which he gave the residuary as “my children.” If he had intended the residuary to pass only to those children born of his marriage to Stella, it would have been more reasonable, in the context of Item 2, for testator to use language such as “our children.”
In the McAfee will, testatrix used language, not present in the Schappell will, which indicated that she intended her gift to pass to her then living children or their issue if they predeceased her: (1) The words “my children” in the first paragraph, are followed by “to dis*258pose of as they see fit.” Looking at such language from the point of view of the testatrix, it is unreasonable to assume that it evidences an intent that her deceased son, George, participate in the disposition and distribution of her estate; (2) the reference in the second paragraph to the then living son Thomas is followed by the language “the remainder devided [sic] among the other children.” £he phrase “the other children” seems clearly to be a reference to the other then living children, who, according to the first paragraph of the will, were to make the decision as to how to dispose of testatrix’s property after she died. This conclusion is supported by the language in the last sentence. “In case any of them become deceased,” which indicates testatrix’s recognition of the possibility that one or more of her then living children might predecease her at some time in the future. Schappell Estate is therefore clearly distinguishable and not authority for the relief sought by appellants here.
Even if we were to conclude that the language of the will is unclear as to whether testatrix intended her deceased son George, to share in her will, so that it became necessary to apply a rule of construction, the result would remain the same. As stated in the Comment to the Wills Act of 1947, Act of April 24, 1947, P.L. 89, § 14 (20 P.S. § 180.14 Repealed by Act of June 30, 1972, P.L. 508, No. 164),
“ . . . when the gift is to a class, issue will not take the ancestor’s share unless the ancestor was living when the will was written or was born thereafter prior to testator’s death.” See also, 6 A.L.R.2d 1347, § 5.
For these reasons, I believe the language of the Mc-Afee will clearly indicates testatrix’s intent that her estate be distributed as found by the Orphans’ Court, and its decree should be affirmed.
EAGEN, J., joins in this dissenting opinion.