Estate of John McQuerns, Deceased

John Q. and Margaret Mullen, namely, George W. Mullen, Rose I. Speelhoffer and Margaret Rhoads. Is the other one fourth to be awarded to Jennie Dunn, nee Mullen, the executrix and sole legatee of William Q. Mullen, the deceased son of John Q. and Margaret Mullen, or to his two children, William and George? The answer depends entirely upon whether, under the will of the testator, William Q. Mullen took a vested interest in the principal of the trust at the death of testator, or whether his interest therein was contingent on his surviving his mother, the life beneficiary. The testator gave his entire estate, by the codicil to his will, in trust to be held by the executors, who were to invest it, and pay the income to Margaret Mullen during her life, or so long as she remained the widow of his son, John Q., and disposed of the remainder in these words,-"and at her death the principal to be paid to the children of her the said Margaret Mullen and John Q. Mullen, or their heirs."

The estate in remainder was given to a class, the children of John and Margaret, all of whom were living when the testator died. The gift is immediate although the enjoyment of it is postponed until the death of Margaret Mullen, or her remarriage. This made it a vested one. The law favors vested rather than contingent estates, and unless it clearly appears from the context, or the circumstances of the case, that a contingent interest was intended, the remainder will be regarded as vesting at the death of the testator and not at the expiration of the lift tenancy. (Bache's Est. 246 Pa. 276. Tatham's Est. 250 Pa. 269). The gift here is to the children of John and Margaret, "at her death". Generally a bequest after the death of a particular person, to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall survive such a person, nor to define when interest shall vest, but only to mark the time when the gift shall take effect in possession, that possession, being deferred merely on account of the life interest limited to the person on whose death the gift is to take full effect, (King v. King, 1 W. & S. 205; Chew's Appeal, 37 Pa. 23.) Where the bequest is to the remaindermen "from and after", or "after", or "at" or "on", the death of the life tenant, or words of similar import are employed, such expressions are construed as relating to the time of the enjoyment of the estate and not as to its vesting, and

Estate of John McQuerns, Deceased

such remainder is a vested one. (2 Alexander on Wills, Sec. 1005, p. 1459.) The remainder here is to a class, the children of John and Margaret. That fact does not prevent a vesting at the death of the testator. (Minnig v. Batdorff, 5 Barr, 503).

The gift is also to a class, or their heirs, which it was suggested at the audit might make it contingent as to the legatees in remainder; that is, whether the members of the class who survived the life beneficiary, and the children of a member of the class who died in her life time are not the persons entitled to take the remainder. This would necessarily require the finding that the gift of the remainder was contingent, not vested, and that only those persons living at the death of the life beneficiary who answered the description of children of John and Margaret, or heirs of such children, take the estate. Such a finding would not be warranted. If there is doubt whether the interest is vested or contingent the law declares it vested. (Letchworth's Appeal, 30 Pa. 175). The case at bar and King v. King, 1 W. & S. 205, are similar in facts except that here the gift of the remainder is to a class, or their heirs, and in that case it was to children named, or their heirs. The testator gave the interest of a certain sum to his wife for her life or widowhood, and after her decease or remarriage he gave the said sum to his children by name or their heirs. This was held to be a vested legacy in the children, and upon the death of either of them his share would go to his personal representative. One of the children died after the testator and before the widow, and accordingly his share was awarded to the administrator of his estate.

The balance of principal shown by the account and the income accrued since the death of the life beneficiary are awarded in equal shares to George W. Mullen, Rose I. Speelhoffer, Margaret Rhoads and Jennie Dunn, executrix of and sole legatee under the will of William Q. Mullen, deceased.

Orphans Court of Montgomery County

Estate of Margaret M. Crowley, Deceased

A died leaving a Will in which she provided that her Executors should invest the proceeds of her estate for the benefit of her daughter, and to pay the same to her when she arrived at the age of eighteen years. The daughter died before attaining her majority, but after passing her 18th year. The question was whether the daughter took a vested interest in the estate. The testatrix having provided in her Will that the daughter should be paid the principal when she arrived at the age of eighteen years, clearly shows that the intention was that she should take a vested and not a contingent interest.

No. 27, November Term, 1919.

Adjudication.

William F. Meyers, Attorney for Accountant.

Opinion by Solly, P. J., November 11, 1919.

Margaret M. Crowley, a resident of the Borough of Consho hocken, died on the 14th day of May, 1904, having made her last will and testament in writing which was duly admitted to, probate the 25th day of May, 1904, wherein and whereby she did provide as follows:

"Second. I order and direct my Executors to sell all my estate, real and personal, and invest the money received from said sale for the benefit of my daughter, Helen Crowley, and to pay over to my daughter, Helen Crowley, the principal and interest when she arrives at the age of eighteen.

"Third. In case of the death of my daughter without an heir, then it is my will that my estate be equally divided between my sisters, Bridget, Hannah, Elizabeth and Mary or their heirs." The daughter survived her mother.

In the adjudication of the account of the executors, filed October 4th, 1905, and entitled No 60 September Stated Court 1905, we found; "Under the provisions of the will the balance of $691.63 must be awarded to the executors as trustees, to invest for the benefit of the daughter, Helen Crowley, until she arrives at the age of eighteen years, when the trust ceases, and at that

Estate of Margaret M. Crowley, Deceased

time the question whether the principal and interest is to be paid to the daughter or her guardian, can be determined.

The balance was awarded to the executors, Charles Dewees and Michael Carolin, as trustees, to invest and further account when Helen Crowley arrives at the age of eighteen years, or upon her death should it occur before that time. Said balance thereafter came into the hands of the trustees. Dennis O'Brien was appointed guardian of the estate of said daughter by this court He presented his petition asking for an allowance out of the principal and income of the trust for the maintenance and education of his ward, and on October 23rd, 1905, we filed an opinion in which it was ordered and decreed that the executors and trustees of the estate of the said Margaret M. Crowley, deceased, should pay to the guardian the income of the trust for her maintenance and education. The opinion is reported in 22 Montgomery County Law Reporter. 9. In the opinion we held that the sisters of the testatrix had a contingent interest in the trust, and that there could be no appropriation of the principal during the period of the trust.

Helen Crowley attained the age of eighteen years on the 9th day of August, 1916. She died on the 24th day of June, 1919. in her minority, unmarried, without issue and intestate. She was survived by neither parents nor grandparents, sisters or brothers, but by a number of uncles and aunts and cousins.

The account was filed the 25th day of September, 1919, showing a balance for distribution amounting to $637.84.

The question to be determined in this distribution is whether the daughter of the testatrix took a vested interest in the estate by the provisions of the will. If she did, then at her death the fund accounted for by the trustees passes as her estate to her next of kin, namely, her uncles, aunts and cousins. It would seem clear under the law that the interest of the daughter vested in her upon the death of her mother, the right of possession or the payment of the estate to her being postponed until she attained the age of eighteen years.

The testatrix directed the sale of her estate, the proceeds invested by the executors for the benefit of the daughter, with direction to pay over *the principal and interest when she

*

"

arrives at the age of eighteen."

Estate of Margaret M. Crowley, Deceased

A bequest of a sum of money to a legatee to be paid when he arrives at the age of twenty-one years is a vested legacy. Bowman's Appeal, 34 Pa. 19. This case would seem to be conclusive of the question here. If they (the words "paid" or "payable") be omitted and a bequest made to a legatee "as if", "provided", "in case of", or "when" they attain twenty-one, these expressions, without being controlled by the context of the will, constitute the time of payment as the essence of the bequest, and consequently the legatees can take no vested interest until they attain twenty-one years. Roper on Legacies.

It is quite clear that a devise to A if or when he shall attain the age of twenty-one, standing isolated and detached from the context, would confer a contingent interest only. Jarmon on Wills, 762.

The direction of the will is that the executors shall pay over the principal and interest of the estate when the daughter arrives at the age of eighteen years, so that we have the bequest to the daughter not "when" she arrives at the age of eighteen, but we have the gift of the estate to be paid "when" she arrives at the age of eighteen, which, it would seem, brings the case on all fours with Bowman's Appeal, supra. The daughter having died possessed of the estate, the same, however, remaining in the hands of the trustees and not having been paid to her because she was in her minority, her next of kin are entitled to the estate, and, as already found, they are uncles, aunts and cousins.