Little's Appeal

1. A testator gave two-thirds of the income of his estate, which was all personal, to his wife for life, the other third to his daughter Elizabeth until she married; on the death of his wife before the marriage or death of Elizabeth, he gave two-thirds of the income to Elizabeth whilst she was unmarried, the other third to ‘‘be paid to my daughter Martha; but at the.marriage of Elizabeth or at her deatblJ-the whole of his estate to he sold and equally divided" amongst all his-childien; the children of deceased children to take their parents’ share. There was no gift over of the third of the income on the death of Martha. Held, that this was a vested gift to Martha for the life of Elizabeth, subject to be determined by her marriage. 2. Martha died intestate, leaving a husband and children, in the lifetime of Elizabeth, who had remained unmarried. Held, that the one-third of the income passed to Martha’s legal representatives. 3. An intention-of the testator to die-intestate as to this portion not being discoverable from the will, is not to be presumed. 4. In Pennsylvania “heirs,” “executors,” “administrators,” &c;, are not necessary to pass an absolute estate in a gift by will.

Appeal from the Orphans’ Court of Philadelphia: No. 127, to . July Term 1875. The proceedings in the case arose under the will of William Agnew, deceased, who died in September 1866; the will was dated April 25th, in the same year. It is as follows:— * * * * * * “ 2. I give to my beloved wife during her lifetime, the house and lot of ground on the south side of Pine street, in which we ■now live, * * * to be occupied by her and my daughter Elizabeth, during the lifetime of my said wife, if they choose to occupy it; but in the event of the death of my widow before the marriage of my daughter Elizabeth, my will and desire is, that then in that event, my daughter Elizabeth shall have the house and furniture and lot aforesaid, either to occupy or rent to others, as she pleases, so long as she remains unmarried; but at her marriage or-at her death, if she never marries, then the said property shall fall back as a part of the residue of my estate, and be sold, and the proceeds of it be divided amongst my children as hereinafter directed. Jjc * * * * * “5. I give and bequeath to my dear wife and to my daughter Elizabeth, the income of my whole estate, to be enjoyed by my said wife during her lifetime, and by my daughter Elizabeth, until she marries, in the proportion of two-thirds of the said income to be for the sole use of my said widow, and one-third for the sole use of my said daughter Elizabeth; and in the event of the death of my said widow before the marriage or death of my said daughter Elizabeth, then my will is and I direct that tworthirds of the income of my estate be for the use of my said daughter' Elizabeth, and given to her so long as she remains unmarried, and the remaining one-third be paid to my daughter Martha Jane Little; but at the marriage of my said daughter Elizabeth, or at her death, then I direct that my whole estate, both real and personal, not disposed of by this will, should be sold by my executors, and the proceeds of it divided equally among all my children, share and share alike, except my son George Washington, whose share shall be held in trust for him by my executors, and the income thereof be paid to him (without any liability whatever for his debts), during his life, and at his death the principal thereof shall go to his children, share and share alike, and if he should leave no children, then it shall descend according to law. But nevertheless, I authorize my executors to pay over to my son George Washington, his share of my estate absolutely, if they shall in the exercise of their best discretion think it proper and advisable so to do; and if either of my children should die, leaving children living at my death, then I desire and direct that the share of such deceased child shall be given to his or her child or children, as the case may be.” Letters testamentary were granted to “The Girard Life Insurance and Trust Company,” the executors named in the will. The widow of the testator died in 1874. Martha J. Little died intestate, February 3d 1875, leaving as her heirs and next of kin, her husband Arthur W. Little, and four sons, Arthur H., William A., Thomas and Frederick V., the last being a minor and having for his guardian his father. Administration of Mrs. Little's estate was granted to Thomas Little, her son. Besides Mrs. Little, the testator left to survive him four children, viz.: Elizabeth, George W., James B, and Harris S. Between the death of the widow and that of Mrs. Little, the executors paid two-thirds of the income, which was wholly from personal estate, to Elizabeth Agnew, and one-third to Mrs. Little. Elizabeth Agnew still survived and remained unmarried. On the 15th of May 1875, the children of Mrs. Little — Thomas in his own rightand as administrator, &c., of Mrs. Little — petitioned the Orphans’ Court, setting out the foregoing facts. They further claimed, “that they, as the four children of Mrs. Martha J. Little, and her sole heirs and next of kin, and personal representatives, are entitled to said one-third of the net income of said estate bequeathed by said will to her, and they have applied to the said executors for. the payment of the same. But the said executors are unwilling to pay the same to your petitioners without the order of this court. “ Wherefore your petitioners pray that the said executors may be ordered to pay the one-third of the net income of the estate of William Agnew to your petitioners, during the life of the said Elizabeth Agnew while she remains unmarried.” The executors on the same day filed an answer in which the children of the testator joined and which they adopted; they admitted the allegations of the petition, and further answered:— “ That the said testator does not signify in the will what shall become of the one-third income paid to Mrs. Little during her life, when she shall die; that they are advised that the said income falls into said estate and remains, until final settlement according to the terms of the will, and that therefore they have not been willing to pay said income to the children of said Mrs. Little.” The.Orphans’ Court, Dwight,' J., made the following decree:— “ Petition refused; and it is decreed, that the income herein referred to be distributed in accordance with the intestate laws.” Thomas Little appealed to the Supreme Court, and assigned the decree for error.