
    Common Pleas Court of Montgomery County.
    William Paul Lauterbach v. Anna Johnston, et al.
    
      Ozias & Ozias, for plaintiff.
   Snediker, J.

In this case the plaintiff seeks partition of certain real estate which was owned by John Farrell during his lifetime; and for the purpose of arriving at the interests of certain devisees of F'arrell the court is asked to construe the will of that decedent. The construction asked for particularly relates to Item II thereof. This item, which is unaffected by any other provision in the will, reads as follows:

“Item II. I give, devise, and bequeath to my wife, Hannah Farrell, all my property and estate, wheresoever situated, to her own for and during her natural life —she to pay all taxes, fire insurance and keep up reasonable repairs out of the income thereof and the remainder of the income and proceeds to be her own absolutely.

In the event at any time after my decease my said wife should see fit to sell any of my real estate and reinvest the proceeds, she may do so providing all of my then living children shall join with her in the deed or deeds therefor, but such deeds shall be as binding as_ my own and it shall not be necessary to make them effective and absolute that any husband or wife of my children shall join in the same as I hereby direct the same to be done in the manner aforesaid. After the death of my wife Hannah Farrell, I first give and bequeath to my son, John Farrell, the sum of Twelve Hundred ($1200.00) dollars, this sum to be accepted by him in full satisfaction of any and all claims he may have against my estate for services or otherwise — in the event he shall file any claim against my estate this bequest to be void — and said legacy to be a lien on my real estate until paid, all the residue and remainder of my estate and property of whatsoever kind and wheresoever situated after the death of my wife, Hannah Farrell, and the payment of the $1200.00 aforesaid, I give, devise and bequeath to my five. (5) children, to-wit:—

Margaret Farrell, Anna Johnson, John Farrell, Jeannette Farrell, and Thomas M. Farrell to be their own absolutely and forever equally share and share alike, subject, however, to the following condition, that if any of them shall die without leaving issue of his or her body that said property shall revert to Ms or her living brothers and sisters equally. I direct my executrix hereinafter named not to allow or pay any claims to any of my remaining children for services, except the amount hereinbefore provided for my son John Farrell, and that if any of my said children present and file claims for services against my estate that their shares hereinbefore devised and bequeathed to them be reduced in an amount equal to the amount of such claims.”

In a determination of the interests of this plaintiff and of several of the defendants the following facts are submitted in the petition and the following questions asked:

The testator died in 1910. Hannah Farrell, his wife, died April 28, 1928. At the death of the testator there survived him all of his children mentioned in' Item II. Margaret Farrell died in 1916 without issue. Jeannette Farrell, who had intermarried with Lauterbach, died in 1929, leaving this plaintiff as her issue. John Farrell died in 1930 without issue. Anna Johnson is living, married, and has one son. Thomas Farrell is living, unmarried, and has no children. Jeannette Lauterbach had been divorced from her husband, William F. Lauterbach, who was in that action barred of any claim or right of dower in her property. The real estate described in the petition remained undisposed of at the death of the widow.

Plaintiff seeks to know what were the respective interests of the children of testator in his property by his will, and as to the construction to be given to the phrase, “die without leaving issue of his or her body,” and particularly as to the time to which it was intended by the testator it should apply, whether prior to the death of the testator, prior to the death of his widow or after her death; what is the present interest of this plaintiff and of the surviving children of the testator in the real estate described in the petition?

It is our opinion that in the will before us this testator gave his property to his wife for life with the power to dispose of the same by and with the acquiescence and participation of his children, and that at his death (at which time, of course, his will became operative) they became vested in common of an estate in fee simple in all his real and personal property, subject to the life estate of his wife and to the payment of the special bequest to his son John, and also subject to the contingency that if after death, and before the death of his wife, any of his five children named in Item V died without leaving issue then the interest of such child or children should pass to his surviving brothers and sisters, share and share alike.

From this it will be clear that we regard the contingent provision found in Item II as meaning “without living issue” at the time of the death of the very children to whom the testator’s estate is devised.

A devise over, after a devise to a person and his heirs, in case the first devisee shall happen to die leaving no issue behind him, has been held to be good; those words being construed to mean, leaving no issue living at the time of the person’s death.

As said by an author on the interpretation of wills:

“The construction at the present day which is given to a devise to one in fee with a limitation over, should he ‘die without issue’, applicable in all cases except where the courts are fettered • by precedent, is that the words refer, prima facie, to failure of issue at the death of the first taker.

“Such construction eliminates in such cases the creation of estates tail by implication. The gift over will be saved from failure and the intention of the testator be given effect whenever the court can find anything in the context of the will to favor such construction, by construing it as executory devise, as where the gift over is to the survivor of several devisees, the force of the word ‘survivor’ being to render the phrase ‘dying without issue’ equivalent to the words, ‘dying without issue living at the time of the prior taker’s death’ ”.

See also 108 O. S., p. 32.

It will be observed that the devise and bequest of this testator to his children is residuary in its nature. After devising and bequeathing a life estate to his wife, Hannah Farrell, he says:

“All the rest, residue, and remainder of my estate and property of whatsoever kind and wheresoever situated, after the death of my wife, Hannah Farrell, and the payment of the $1,200.00 aforesaid, I give, devise, and bequeath to my five children — ”—etc.

In the second clause of Item II is found a provision for the sale of any of his real estate and a reinvestment of the proceeds, in which “my then living children shall join”; which shows his intention that his children shall have an interest in his property from the time of his death. But further along he uses this language:

“subject, however, to the following condition: that if any of them shall die without living issue of his or her body, that said property shall revert to his or her living brothers and sisters equally”;

by which he expresses an intention that if any one of his children shall die leaving no issue prior to the death of his wife, his interest as a residuary devisee and legatee in the real and personal property of his- estate shall be turned to those of his brothers and sisters who are then alive.

At the death of the wife the distribution of the estate ought to take place; and this testator must have intended this last provision of his will to be effective only before such distribution. At the commencement of the distribution period the rights of the several children then alive would be fixed and the contingency inoperative. The title to the real estate of - this testator is disposed of by the same provisions as the title to his personal estate, and the same construction ought to be given to both.

At the death of his mother, Jeannette Lauterbach, this plaintiff was entitled to her share of the testator’s estate. When John died in 1930 his interest descended, under the statutes of descent and distribution, share and share alike, to Anna, Thomas, and the plaintiff through his mother. So that now the plaintiff, Anna Johnson, and Thomas Farrell are tenants in common, each owning one-third of the property here sought to be partitioned.

Under the facts stated in the petition, the plaintiff is entitled to have his portion of the real estate in question set off to him in severalty, and a division thereof ought to be made consistently with this opinion.  