Wheaton Coal Co. v. Harris

• Decision Date: 03 January 1927
• Docket Number: 312
• Citation: 135 A. 637,288 Pa. 294
• Parties: Wheaton Coal Co. v. Harris et al. and Hummel, Trustee, Appellant, et al., Garnishees
• Court: Pennsylvania Supreme Court

135 A. 637

288 Pa. 294

Wheaton Coal Co. v. Harris et al. and Hummel, Trustee, Appellant, et al., Garnishees

No. 312

Supreme Court of Pennsylvania

January 3, 1927

Argued December 3, 1926

Appeal, No. 312, Jan. T., 1926, by Walter R. Hummel, trustee under will of William H. Harris, deceased, garnishee, from order of C.P. No. 1, Phila. Co., June T., 1925, No. 25 making absolute rule for judgment against garnishees on answers to interrogatories, in case of Wheaton Coal Co., to use of Payne Coal Co., Inc., v. George M. Harris et al individually and trading as copartners, as George M. Harris & Sons and Walter R. Hummel, trustee, et al., garnishees. Affirmed.

Rule for judgment against garnishee Hummel, on answers to interrogatories. Before TAULANE, J.

The opinion of the Supreme Court states the case.

Rule absolute. Walter R. Hummel, trustee, appealed.

Error assigned was, inter alia, order, quoting record.

The judgment is affirmed.

Horace M. Rumsey, for appellant. -- The intention of the testator must dominate in determining whether the remainder interests are vested or contingent: Woelpper's Est., 126 Pa. 562; Rosengarten v. Ashton, 228 Pa. 389; Mulliken v. Earnshaw, 209 Pa. 226; O'Donnell's Est., 252 Pa. 45; Kirkpatrick's Est., 280 Pa. 306; Leech's Est., 274 Pa. 369.

The interests of the son and grandchildren are contingent remainders: Frasier v. Gas & Water Co., 249 Pa. 570; Dunwoodie v. Reed, 3 S. & R. 435; Rosengarten v. Ashton, 228 Pa. 389; Lewis's Est., 231 Pa. 60; Evans's Est., 264 Pa. 357; Bennett's Est., 270 Pa. 397; Adams' Est., 208 Pa. 500; Craige's App., 126 Pa. 223; Reilly's Est., 200 Pa. 288; Raleigh's Est., 206 Pa. 451; Price's Est., 279 Pa. 511; O'Donnell's Est., 252 Pa. 45; Grothe's Est., 237 Pa. 262; Fitzpatrick's Est., 233 Pa. 33.

Where there is no direct gift or devise, but an indirect gift or devise, implied from the direction to divide among a class, the remainder is contingent: Provencher's App., 67 Pa. 463; Safe Dep. & T. Co. v. Wood, 201 Pa. 420; Seibert's App., 13 Pa. 501; McClure's App., 72 Pa. 414; Reiff's App., 124 Pa. 145; Raleigh's Est., 206 Pa. 451; Adam's Est., 208 Pa. 500; Mulliken v. Earnshaw, 209 Pa. 226; Kountz's Est., 213 Pa. 390; Wood v. Schoen, 216 Pa. 425; McDaniel v. McDaniel, 219 Pa. 371; Roney's Est., 227 Pa. 127; Rosengarten v. Ashton, 228 Pa. 389.

Sidney E. Smith, for appellee. -- The interest of George M. Harris is a vested one, subject to divestiture if he dies before the life tenant: Kountz's Est., 213 Pa. 390; Groninger's Est., 268 Pa. 184; McCauley's Est., 257 Pa. 377; Neel's Est., 252 Pa. 394; Carstensen's Est., 196 Pa. 325.

The interests of George M. Harris, Jr., and W. Leon Harris, grandchildren of testator, are vested absolutely, or vested subject to being divested by their death before the life tenant: Eckert v. Trust Co., 212 Pa. 372; Middleton's Est., 212 Pa. 119; McClure's App., 72 Pa. 414.

In the construction of wills, the law leans in favor of a vested rather than a contingent estate: Smith's App., 23 Pa. 9; Fitzwater's App., 94 Pa. 141; Ryon's App., 124 Pa. 528; Jackson's Est., 179 Pa. 77; Jenning's Est., 266 Pa. 60; Neel's Est., 252 Pa. 394; Groninger's Est., 268 Pa. 184; Tyson's Est., 191 Pa. 218.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

William H. Harris died in 1911, leaving a will in which he gave his residuary estate in trust for his wife for life, the net income to be paid her quarterly, and directed that on her death the property "shall be divided into as many shares as there shall be grandchildren living at the time of my death, in addition to my said son, (so that my said son: George M. Harris, shall take the same share therein as each of my said grandchildren), and thereupon I give, devise and bequeath said share of my estate to the said George M. Harris and his heirs absolutely and in fee simple, and if the said George M. Harris shall predecease my said wife, then his said share shall lapse and shall become part of my residuary estate." He followed the foregoing provision by directing his trustee to pay the net income from the balance of his residuary estate to such children of his son George "who shall be living at the time of my death . . . and upon the death of any of said grandchild prior to the beginning of said trust for said grandchildren, or subsequent thereto," its share should be divided among the surviving grandchildren. He then provided: "I further direct that my said grandchildren living at the time of my death shall be entitled to the principal of said trust, in equal shares, payable as follows: when each of my said grandchildren shall arrive at the age of twenty-one years, my said executor and trustee shall transfer to him or her one equal share of the principal of said trust which shall vest in her or him absolutely and in fee simple, and if any said grandchild shall die, subsequent to my death or during the continuance of said trust, leaving issue, then said issue shall take the share which the parent would have taken if living and if he die without issue, then the said share shall vest in the said surviving grandchildren." Testator left to survive him a widow, who took under the will, and is still living, his son George M. Harris, and three grandchildren, two of whom at present are of age, and one a minor.

The son and his two adult sons while engaged in business together became indebted to plaintiff who to secure payment of that indebtedness issued a writ of foreign attachment against their interests under the will of William H. Harris, having first obtained judgment against defendants, and summoned the trustee, appellant, and others, as garnishees. The validity of the attachment is now questioned, and whether it is or is not valid depends upon the nature of the interests of the son and grandchildren in the estate of William H. Harris, are they vested or contingent? The court below held them vested and subject to attachment but withheld execution during the life of the widow. The trustee appealed.

It is a well-settled rule, repeated in numerous cases (see Kountz's Est., 213 Pa. 390, 397), that the test in determining if an interest is vested or contingent is not the certainty or uncertainty of obtaining actual possession, nor the defeasibility or indefeasibility of the right of possession, inasmuch as estates may be vested in interest though without present right of possession. So long as a present right exists to a future possession the estate is vested, even though actual possession may be defeated by a future event. In Walker's Est., 277 Pa. 444, 448, quoting from Fearne on Contingent Remainders, and following earlier decisions of this court, we said, "'Wherever there is a particular estate, the determination of which does not depend on any uncertain event, and a remainder is thereon absolutely limited to a person in esse and ascertained, although the nature and duration of the estate limited in the remainder may be such that it may not endure beyond the particular estate, and may therefore never take effect or vest in...