Loving's Estate

Ladner, J.,

dissenting, November 30, 1945. — I dissent from the majority opinion and agree with the auditing judge’s construction of the will for the reasons well stated in his adjudication, which I need not repeat. I merely add that the presumption against the contingency of a legacy is not nearly as strong where the gift is to collaterals as when made to lineals: Weir’s Estate, 307 Pa. 461, and cases therein cited at p. 469. Nor is the presumption against partial intestacy any stronger than the presumption against the intention to disinherit the natural heirs, and where these presumptions conflict, the will should be interpreted without regard to either of these presumptions: French’s Estate, 292 Pa. 37, at p. 41.

I cannot believe that this testator intended to prefer his collaterals to his descendants. It is more natural to suppose that the provision for the collaterals was intended to take effect only if by the happening of some unforeseen circumstances his grandchildren both died before his sister and niece. However improbable this might have been, it was not impossible. So far as failure to provide for great-grandchildren is concerned, the will is merely a familiar example of the failure of the testator’s mind to run that far. From the date of the will it would seem that the grandchildren at that time were of tender years and great-grandchildren unborn. I would dismiss the exceptions. Judge Hunter joins in this dissent.