:

"All the rest, residue, and remainder of my estate real

and personal, of what kind or nature whatsoever the same may be, I give and bequeath the same unto my two nieces, Mary Everman and Susan Everman, in equal shares, their heirs and assigns forever."

The will of Sarah Everman, dated May 12, | will, which under the law would have lapsed, 1863, after a specific bequest of personal pro-"shall be included in the residuary devise, if perty, contained the following clause :any, contained in such will." The oldest and best definition of "residuary devise" that has been found, was given by the Master, and is contained in the case of Skrymsher v. Northcote (1 Swan. Ch. Rep. 570); "residue means all of which no effectual disposition is made by the will other than the residuary clause." Applying this definition to the Act under discussion, and construing the Act according to the technical meaning of the word used, the conclusion is inevitable that the words of the section which precede those alluding to the residuary devise, can refer only to devises in the body of the will.

Susan Everman, who was a sister of Mary Everman, died in 1866, unmarried and without issue. The contention before the Master arose as to the portion of Sarah Everman's real estate devised to Susan Everman, and lapsing by reason of her death in the lifetime of Sarah Everman. It was urged, on the one hand, that under the Act of June 4, 1879, the share thus lapsing fell into the residuary estate, and thus went to Mary Everman or her heirs; and, on the other hand, that it passed to the heirs-at-law of the testatrix. The Master decided that the Act of 1879, did not apply, because the share which lapsed was part of the residue itself, and accordingly awarded the share thus devised to Susan Everman, to the heirs-at-law of Sarah

Everman.

To this award exceptions were filed by the heirs of Mary Everman, deceased.

Isaac D. Yocum, for exceptants.

December 27, 1884. THE COURT. The Act of June 4, 1879, P. L. 88, makes the law respecting the devolution of a lapsed devise the same as it is in the case of a lapsed bequest. No doubt the Act was passed in consequence of the decisions in Yard v. Murray (86 Pa. St. Rep. 113), and Massey's Appeal (88 Pa. St. Rep. 470), in the first of which it was held that a lapsed devise descends to the heir-at-law, and in the second, that a lapsed bequest falls into the residue and goes to the residuary legatee. Having in view the old law, the mischief, and the It is admitted that but for the Act of 1879, remedy, we are of opinion that the Act of 1879 under the decision of the Supreme Court in was intended to apply only to lapsed specific Massey's Appeal (7 Norris, 470), the conclusion devises in the body of the will, and that, as to of the Master would be correct. The distinc-lapsed shares of the residue, no change was tion between a lapse occurring in the body of intended or effected. Where there is a bequest the will, and a lapse of a part of the residuary or devise of the residue to two persons, without estate, can have no application in regard to real words indicating that the survivor shall take the estate, in the face of a positive Act of Assembly, whole, the intent is clear that one of them shall which makes and permits of no such distinction, not have the whole, but a moiety only. The but which provides in plain terms that "all de- case is within the exception mentioned in the vises which fail or become void by reason of the statute; the lapsed share cannot go to the surdeath of the devisee in the lifetime of the testa-vivor, because that intention does not appear by tor, shall be included in the residuary devise the will. If the residue of an estate, either

contained in the will."

Act June 4, 1879, P. L. 88.

J. DeF. Junkin, for the heirs-at-law of Sarah Everman.

Under the rules of the common law, real estate, a devise of which has lapsed, descends to the heirs-at-law, and this is the law in Pennsyl

vania.

Massey's Appeal, 7 Norris, 470.

real or personal, is given to persons by name and not in a class, each is entitled to a share and no more; and if there should happen to be a lapsed share of the residue, it goes to the next of kin, if it consists of personalty, and to the heir, if realty. This was held in two cases, Williams v. Neff and Neff's Appeal (52 Pa. St. Rep. 326), arising out of the same will; and the reason is that there cannot be a residue of a In the opinion in that case, Neff's Appeal (2 residue. The Act of 1879 is a copy of the EngP. F. S. 326) is distinctly recognized; the lapse lish Wills Act of 1st Victoria (1837), and there there had occurred in the residuary clause of a it was held before the statute, in Barber v. Barwill, and it was held that the others named in ber (3 Mylne & Craig, 688), and since, in Spenthe residuary clause did not take the lapsed de-cer v. Wilson (16 Law Rep. Eq. 501), that a vise, because there could be no residue of a resi- lapsed share of a residuary devise goes to the due. heir and not to the surviving residuary devisees. It is contended by counsel for the exceptants And so it was held in Sohier v. Înches (12 that the Act of 1879, altered that law. That Gray, Mass. 385). The learned Master was Act is, in short, that any devise contained in a right in awarding the share of the residuary

Sharpe at the date of his death, having been | bounty. The person intended by testator was his divorced from him, she is not entitled to any daughter-in-law Ada, and to add the word "wife” portion of the trust estate, but that the same was merely to still more particularly identify her. should be awarded, either for the benefit of the children of Lewis W. Sharpe by his second marriage, or to herself as the sole child of testator and legatee in remainder. We must therefore determine to whom the trust estate is to be awarded.

It was to designate the person, and not to imply a condition, viz., that she must be the wife of the son at the time the bequest to her took effect. She was his wife at the date of the gift to her, and that is all that is necessary. (See Woodright v. Wright, 10 Mod. 371; Vine's Abridgment, If we were disposing of any property or estate 309; Plowden, 344; Jarman on Wills, 285.) of Lewis W. Sharpe, the son, an entirely differ- As if, in this case, Ada had not been married to ent question would be presented. Having been the son of testator, and he supposing her to be divorced from him, his former wife would not be his wife, had given a legacy to "Ada, wife of entitled to any interest or share of either his real my son Lewis," she would have been entitled to or personal estate. (Act of March 13, 1855, it although not actually married to Lewis. (ThePurd. 511, pl. 14; Miltimore v. Miltimore, 40 obald on Wills, 210, and cases cited.) Again, Penna. S. R. 151.) But if a husband desert his the mere fact that a gift is made to a named wife, her subsequent adultery will not bar her legatee in a certain character, as "to my wife right of dower. (Reel v. Elder, 62 Id. 308.) A.," does not avoid the legacy, if the legatee But we are disposing of the estate of the father does not happen to fill the character. (Id., p. under the provision of his will. The son had 215.) And prima facie a gift to the wife of A., but an equitable life estate, the legal estate being who has a wife living at the date of the will, goes in the trustee during the continuation of that to that wife, and no other. (Id. 216.) As to life estate. Upon looking at the father's will the effect of the divorce, which we think immamade during the wedlock of his son Lewis with|terial, we have been referred to Burton v. Sturhis wife Ada, we find that testator created a

First. For the benefit of his son for life. Second. For the benefit of his son's wife, Ada, and her children by her husband, Lewis, until they attained majority, when the trust was to end and the fund be equally divided between them. And finally, if no issue of his son survived and reached majority, then upon his son's death, the estate held in trust was to be divided, one-half to Ada, the widow of his son, and one-half to the remaining children of testator. This is clearly the scheme of the will.

The testator survived the divorce some time and died without making any alteration of his will. That he was satisfied to allow the provision made for his daughter-in-law to remain may therefore well be presumed. It is therefore difficult to understand upon what theory the legatee, who was Ada, wife of testator's son at the date of the will, should be deprived of her bequest. Her subsequent divorce, prior to the death of testator, certainly cannot convert the legacy into either a void or lapsed legacy. And, as argued by the counsel for the claimant, if she is not entitled to one-half of the trust fund, who is entitled to it? The son was married to his second wife many years after the death of his father, so that she was not contemplated by testator. (Garratt v. Niblock, 1 Russ. & M. 629; Jarman on Wills, p. 283.) Again, the former wife, Ada, is mentioned in the will by name, and she was the only person answering to that description at the date of the will, from which time it speaks as to the identification of the object of testator's

geon (34 Law Times Rep. N. S. 706); Fitzgerald v. Chapman (33 Id. 587); Bullmore v. Wynter (48 Id. 309). In all of which the fact of divorce is not considered as having any effect upon the gift or devise.

As already held, that the second wife of Lewis W. Sharpe can have no possible interest in the trust estate, so we think it is equally clear that the intention of testator was to restrict the gift to the children of his son Lewis by his wife Ada."

The testator made his will in view of the circumstances then surrounding him. His son, with his wife and children, were residing with him, and he certainly did not then contemplate a divorce, the death of Lewis's children by his wife Ada, his subsequent re-marriage and birth of other children. This appears from the will itself, where he provides for the trust for his wife Ada, and child, or children,' meaning, of course, her child, or children by her husband Lewis. (See Jarman on Wills, p. 284.)

After a careful consideration of the subject, the Auditing Judge concludes that Mrs. Cloud is entitled to one-half of the corpus of the trust estate, as legatee under the will.

The further question then is, who is entitled to the remaining half part of the trust estate? On the one hand, it is claimed by Mrs. Larned, wife of accountant, as the only surviving child of testator. While, on the other, it is claimed that the children of testator living at the time of his death, took vested interests in said trust fund, which upon the death of Lewis W. Sharpe, the cestui que trust for life, became payable to them,

or in case of their death during his lifetime, to their legal representatives, it being personal estate. It seems testator left surviving him four children, viz., Mrs. Matilda Larned, Mrs. Elizabeth Morris, wife of John Wyman Morris, Charles Sharpe, and Lewis W. Sharpe, the cestui que trust for life. Mrs. Larned is still living, but both Mrs. Morris and Charles Sharpe died after testa tor, and in the lifetime of Lewis W. Sharpe.

By again referring to the will, we find that testator bequeathed the trust fund after the death of his son, and "in case of no surviving child, one-half part to his wife Ada, and the remainder | to my other surviving children, share and share alike."

The inquiry then arises, what is the proper construction to be placed upon words "surviving children," and what period was in the mind of the testator, from which to determine who are to be considered as his "surviving children." By the guardian of the minor grandchild, it is contended we must ascertain who were the "surviving children" at the date of the will, or at the death of the testator, when the will took effect and the interests became vested. While on behalf of Mrs. Larned it is contended that the period of survivorship is the death of Lewis W. Sharpe, and only the child or children then living are entitled to take. It is to be observed, that the gift is of a personal estate, and to a class-"my other surviving children."

to said Lewis W. Sharpe, and one-half of the fund in the hand of accountant will accordingly be so distributed.

Exceptions were filed by William H. Larned, trustee of the surviving child of Lewis W. Sharpe, and by Matilda Č. Larned.

John F. Lewis (Charles Gibbons with him), for exceptants.

J. Edward Ackley and George Northrop for Mrs. Cloud and Charles M. Sharpe, a minor, son of Charles Sharpe a son of Jacob L. Sharpe, who survived him and died during the lifetime of Lewis W. Sharpe.

November 29, 1884. THE COURt. The rule that where there is an absolute gift by will to one person, and "in case of his death" to another, the gift over will be construed only to take effect in the event of the death of the first taker before the period of payment (Mickley's Appeal, 11 Norris, 514; Fitzwater's Appeal, 13 Norris, 141) -a rule no longer followed in England (Theobald on Wills, 339)-is subject to the qualification that the will discloses no indication of a contrary intent. (Hawkins on Wills, 254.) And, in the present case, such contrary indication is found in the direction by the testator that the trust declared as to the share of his son Lewis shall continue," in case of his death, for his wife, Ada, and child or children. As the trust was not to begin while the testator lived, it could not, of course, "continue" at Lewis's death, if the death intended was one occurring in the testator's lifetime. Words used in a will are to be taken in their ordinary sense, and are never to be rejected where a meaning, not inconsistent with the general scope of the instrument, can be given to them. Moreover, if the absolute beneficial interest is given to Lewis, the trust for him would be inoperative, and he would be entitled to the legal estate; while, if he is On the contrary, the death of the testator is entitled for life only, the trust is perfectly valid. the period from which to determine the question | It is to be presumed that the testator knew the of survivorship. This is held in numerous cases, law, and that he intended that which was efficaamong which may be cited Johnson v. Morton cious rather than that which was not; and (10 Barr, 245); Cresson's Appeal (76 Pa. St. 19); Provenchere's Appeal (67 Id. 463); John's Est. (2 WEEKLY NOTES, 632); Buckley v. Reed (3 Harris, 85).

The law is well settled that, as far as possible, legacies will be construed as vested, rather than contingent, the object being to prevent a lapse, and preserve the rights of children prior to the time for distribution. Notwithstanding, from the text-books and many English cases, the rule in England would appear to be, that in a gift to a class as survivors, only those living at the time of distribution would be entitled to take, yet such is not the law of this State.

this furnishes another reason for. believing that it was not meant that the wife and children of Lewis were to take substitutionally, and only in the event of his death in the lifetime of his father, but by way of remainder whenever his death should occur.

The other questions raised by the exceptions have been so fully considered by the Auditing Judge that it is unnecessary now to discuss them. The only point as to which we have felt doubt is with regard to the persons entitled to take under

Without elaboration upon the point, the Auditing Judge is of the opinion that the children of testator living at his death took a vested interest in the legacy bequeathed in trust for Lewis W. Sharpe, subject to be divested upon his leaving a child by his wife Ada him surviving. As upon his death he left no such child or children, one-half of the legacy in trust for him became the limitation to the "child or children." It payable in equal shares to the surviving child of testator, and the personal representative of the children who survived testator, and died prior

was held, however, in the recent case of Webb v. Hitchins (14 WEEKLY NOTES, 434), that where a parent or ancestor, in designating the

object of his bounty, speaks of "the children,' the more reasonable construction is that children in being, or those likely to be born of an existing marriage, were intended, rather than those who, at some remote and indefinite future time, might possibly be born of a marriage neither existing nor in contemplation. The views of the Auditing Judge are in accord with this ruling, which is itself supported by the principle which favors an early vesting of estates, and a preference for those known to the testator.

We are compelled, therefore, notwithstanding the very able argument of counsel for the exceptants, to dismiss the exceptions and confirm the adjudication.

Opinion by PENROSE, J.

J. D. B., Jr.

December 20, 1884.

Yard's Estate. Guardian and ward-Private sale of minor's interest in real estate of decedent under Price Act When sale of such interest is made by guardian, the Court will direct the proceeds to be paid to the executor, for the purpose of paying debts due by decedent-Lien of debts not of record-Acts of April 18, 1853, and March 23, 1867-Amendments—Act of April 13, 1854.

The administrators claiming that they were entitled to receive the proceeds of these sales, to be administered by them and applied to the payment of the debts of the decedent, petitioned the Court for an order to pay over to them the balance in the hands of the guardian, and the Court granted a citation. The answer of the guardian admitted the sale of the real estate and the receipt of the purchase-money, but denied "any power or authority of the Court to order him to pay money in his hands belonging to a minor to the petitioners, in the form and under the proceedings inaugurated by the petitioners," and claimed "that money having once been paid to a guardian, the Orphans' Court have not the power to direct the payment of said money to any other person than the legal representative of said minor, or to the legal creditors of said minor." guardian further answered, "that the real estate sold, the proceeds of which he now holds for said minor, has not been discharged of the lien of the petitioners' judgment, if there ever was a lien upon said real estate, and that if petitioners ever had a lien upon said property they have the same lien now, notwithstanding the sale."

Bradfield & Powell, for petitioners.
James H. Shakespeare, contra.

The

of the beneficiaries, and to secure to purchasers, thus induced to pay higher prices, absolute indefeasible titles, discharged of all liens or incumbrances, other than such as are expressly excepted; the fund produced by the sale being substituted for the land and placed under the control of the Court in order that the rights of all persons interested may be fully protected.

January 3, 1885. THE COURT. The Act of April 18, 1853 (Purd. 1242), was intended to unfetter estates, to facilitate the transmission of title, to enable persons acting in a fiduciary caSur petition for order to pay, and answer. pacity to sell at private sale when, in the opinTheodore S. Yard died February 18, 1883, in-ion of the Court, this would be to the advantage testate, and leaving surviving a widow and one child, a minor. The Guarantee Trust and Safe Deposit Company were appointed administrators of decedent's estate, and John V. Ripperger was appointed guardian of the minor's estate. The decedent was seised of the one twenty-fourth interest in certain real estate, which descended to him from his grandfather, who died in 1880. In May, 1884, a judgment for $6814.66, was ob tained against the administrators. Under authority of the Orphans' Court the guardian sold part of the interest of decedent, and was trying to sell the remainder; the administrators filed a petition setting forth these facts, and claiming that the proceeds of the sales made by the guardian should be applied to the payment of the debts of decedent, which had been discharged by said sales. The Court granted a citation to the guardian to show cause why he should not file in the office of the clerk of the court an account of all moneys coming into his hands from the estate of Theodore S. Yard, deceased, and subsequently, an order to file such account having been made, the guardian filed an account showing the sum of $535.58 in his hands, after deducting certain credits.

In the present case, the petition upon which the sale was ordered was that of a guardian, setting forth that the minor had acquired an undivided interest in the property by descent from his father, and asking that he might be permitted to join with the other owners in making private sale at what was represented to be the full value, and more than could be obtained at public sale. The requisite order was made, the sale took place, and the purchase-money is in the hands of the guardian.

Letters of administration upon the estate of the father having afterwards been taken out, the administrator now presents a petition setting forth that there is no personal property applicable to the payment of debts-those of which notice has been given being stated-and asking that the moneys so in the hands of the guardian