Opinion
January 11, 1940.
February 1, 1940.
Wills — Construction — Bequest absolute or conditional upon reaching specific age — Absence of gift over.
Where testatrix bequeathed the residue of her estate in trust, and provided that the net income should be paid to her niece until her arrival at the age of thirty years; should her niece be a minor at the time of testatrix's death, the net income to be applied for the niece's education and clothing until she became twenty-one; should the niece die before she become thirty years old, the residuary estate to go absolutely to the niece's children then living; and should the niece die before she became thirty years old without leaving children surviving, the residuary estate to pass to testatrix's nephew, absolutely; and it appeared that at the date of testatrix's death the niece was over thirty years of age and had no children; it was held that the niece received an absolute estate, as against the contention that an intestacy resulted.
Argued January 11, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN and PATTERSON, JJ.
Appeal, No. 356, Jan. T., 1939, from decree of O. C. Phila. Co., 1939, No. 539, in Estate of Florence B. Bosworth, deceased. Decree affirmed.
Audit of account of executor. Before LADNER, J.
The opinion of the Supreme Court states the facts.
Adjudication filed awarding balance for distribution to residuary legatee and exceptions thereto dismissed, before VAN DUSEN, P. J., STEARNE, SINKLER, KLEIN, BOLGER and LADNER, JJ., opinion by VAN DUSEN, P. J. Exceptant, next of kin, appealed.
Errors assigned, among others, related to the action of the court below in dismissing the exceptions.
Bryan A. Hermes, with him Thomas R. MacFarland, Jr., for appellant. John G. Kaufman, for appellee.
This is an appeal from the decree of the Orphans' Court awarding the residue of the estate of Florence B. Bosworth to her niece, Florence Huber, now Florence Huber Blew. The will provides: "All the rest, residue and remainder of my estate, real, personal and mixed, . . . I give, devise and bequeath unto my Executor and Trustee, hereinafter named, In Trust, to invest, reinvest and keep the same invested, and the net income derived therefrom, I direct to be paid quarterly unto my niece, Florence Huber, until her arrival at the age of thirty years. Should my said niece be a minor at the time of my decease, I direct that said net income be applied for her education and clothing until her arrival at the age of twenty-one years. Should my said niece, Florence Huber, die before arriving at the age of thirty years, I give, devise and bequeath my said residuary estate unto such of her children as may then be living, in equal parts, share and share alike, absolutely. Should my said niece die before arriving at the age of thirty years without leaving children her surviving, I give, devise and bequeath my said residuary estate unto my nephew, William Box, absolutely."
At the date of the testatrix's death, Florence Huber was thirty-two years of age and had no children. Appellant contends that an intestacy resulted and the remainder of the estate passed to the heirs at law and next of kin, of whom she is one.
The court below properly determined that as there was no gift over when Florence Huber reached thirty and gifts over in the event she did not reach thirty, it is evident that the testatrix intended to give her an absolute estate. This is a fair implication from the terms of the will: Cassell v. Cooke, 8 S. R. 268; Jeremy's Est., 178 Pa. 477, 35 A. 847. English's Est., 242 Pa. 545, 89 A. 680, and Gibbons's Est., 317 Pa. 465, 177 A. 50, relied upon by appellant, have no application.
Decree affirmed at appellant's cost.