McKee's Appeal

• Decision Date: 07 January 1884
• Parties: McKee's Appeal.
• Court: Pennsylvania Supreme Court

Page 571

104 Pa. 571

McKee's Appeal.

Supreme Court of Pennsylvania.

November 7, 1883.

January 7, 1884.

November 7th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

APPEAL from the Orphans' Court of Allegheny county: Of October Term 1883, No. 216.

James W. Collins, for the appellant.—The phrase "living heirs," used by the testator, is qualified by the one which follows, where he explains who compose the said class by including Mrs. Crombie and her children and Mrs. McKee and her children. The use of the word children three times in the same sentence was intended to enlarge the number included among his living heirs, so as to take in not only his daughters but their children. If the word children is used by a testator, not to denote succession, but as descriptive of the persons who are meant by the term living heirs, the rule of law is then, that where there is a gift to one, and his children, and there are children living at the date of the will, they take the whole interest jointly with the parent: Williams on Exrs. 1094; De Witte v. De Witte, 11 Sim. 41; Paine v. Wagner, 12 Id. 184; Bustard v. Saunders, 7 Beav. 92.

J. A. Evans, for appellee.—The word "heirs" in a gift of personal property has uniformly been construed to mean such persons as would take under the statute of distribution, had the testator died intestate: Baskin's Appeal, 3 Pa. St. 304; Barnitz's Appeal, 5 Pa. St. 264; 2 Williams on Exrs. 1109. Testator evidently did not know that the gift "to all his living heirs" would include the children of his deceased daughter, and in the second clause of the bequest he includes them specifically, and in view of the possible death of either of his other daughters, he makes their children his beneficiaries also, not in conjunction with their mother, but in case of her death before his own. To the mind of the testator both of these clauses had the same meaning, and standing alone with nothing in the context to indicate which is to govern in the construction of this will, we may as readily adopt one as the other, and a strong support to the construction placed upon the will by the learned judge below, is the principle of law, that where a bequest is capable of two meanings the one will be adopted which follows the statute of distribution: Stehman's Appeal, 45 Pa. St. 398; Horwitz v. Norris, 60 Pa. St. 261; Minter's Appeal, 40 Pa. St. 111.

Mr. Justice CLARK delivered the opinion of the court, January 7th 1884.

The question distinctly presented upon this record is, whether or not, the children of Eliza A. Crombie and of Rachel McKee are parties interested under the will of Samuel Henry, deceased, in the proceeds of the sale of his real estate.

The clause of the will out of which the contention arises is in the words following:

"I will and bequeath to all my living heirs an equal share, that is, share and share alike, that is, to my daughter Eliza A. Crombie and children, Rachel J. McKee and her children, Mary Ann Craig's two children equal shares."

In a bequest of personalty, unless a contrary intent is indicated by the will, the word "heirs" signifies the testator's heirs, as ascertained by the statute of distribution: Baskins' Appeal, 3 Penna. St. 304; Eby's Appeal, 3 Norris 241; Bender's Appeal, 3 Gr. 210. In this will the bequest is, in the first instance, "to all my living heirs, an equal share, that is share and share alike." Under the rule of construction referred to, if this clause ended here, no...