
    HORSTMANN’S APPEAL.
    A devise by a son of all his interest in his mother’s estate to his brothers and sisters does not deprive his children of a portion of his share of the mother’s estate which would vest in them by the subsequent death of their aunt.
    An heir is not to be deprived of his rights by a forced construction.
    Appeal from the Orphans’ Court of Philadelphia County. No. 170, July Term, 1884.
    This case, arose upon the audit of the second account of The Fidelity Insurance, Trust and Safe Deposit Company, Trustees under the will of Sarah Horstmann, deceased.
    Sarah Horstmann, the decedent, died ai widow in 1855, leaving to survive her six children, William J. Horstmann, Sigmund H. Horstmann, George Henry Horstmann, Emma Thibault, Lavinia Patterson and Henrietta G. Horstmann.
    By her will Sarah Horstmann left all her estate in equal shares to her six children before-named, the shares of each of the daughters -to be held in trust for the said daughter’s benefit during life, with remainder in fee to children of said daughter upon her death.
    And in case a daughter should die without issue and without a husband, then the will provided that the share of the ■daughter so dying should be:—
    “In trust to and for the only proper use and behoof of my surviving children, and the lawful issue of such of them as may then be deceased, their heirs, executors, administrators, and assigns in equal parts and shares.”
    Henrietta G. Horstmann, a daughter of decedent, died February, 1884, without issue and without a husband.
    The question is as to the distribution of the share of the estate of Sarah Horstmann, held in trust for the benefit of said Henrietta G. Horstmann at the time of her death.
    At Henrietta G. Horstmann’s death the share of the estate of Sarah Horstmann held in trust for Henrietta’s benefit was as follows:—
    
      By the will of Sarah Horstmann one-sixth of her estate passed in trust for Henrietta’s benefit; but at Henrietta’s death the said one-sixth had increased to one-fourth under circumstances as follows:—
    On March 29th, 1870, Sigmund H. Horstmann, a son of said Sarah Horstmann, the decedent, died, leaving a will in which he provided as follows:—
    
      IV. Item. — If at the time of my decease no final division or settlement of the estate of my mother, Sarah Horstmann, deceased, shall have been made, I do hereby give, devise and bequeath all my share, estate, right, title, interest, part, purpart, claim and demand in and to the said estate of my said mother, which I am entitled to or interested in under her will (dated the fifteenth day of October, Anno Domini 1851, duly proven and registered in the proper office at Philadelphia), unto and to be equally divided between my brothers and sisters whom I may leave surviving me, and the lawful issue of such of them as may then be deceased, their heirs, executors, administrators and assigns, in the same and like way and manner, with the same limitations and provisions as are expressed and declared in her said will with, respect to the shares and interests of my said brothers and sisters in and to the said estate of my said mother, my wish being, in the event aforesaid, to relinquish all my estate, claim and demand in and to said estate, in behalf of and for the benefit of my said brothers and sisters, and the issue of such of them as may be then deceased, as above expressed.”
    Sigmund H. Horstmann left surviving two brothers and three sisters, being the other five children of Sarah Horstmann —therefore under the provisions in Sigmund’s will, the trust for Henrietta G. Horstmann was increased by one-fifth of Sigmund’s one-sixth, that is by one-thirtieth of Sarah Horstmann’s estate; and the trust for Henrietta’s benefit was after Sigmund’s death as follows:—
    One-sixth from the mother, Sarah Horstmann; one thirtieth from the brother, Sigmund H. Horstmann.
    
      On May doth, 1872, William J. Horstmann, a son of said Sarah Horstmann, the decedent, died, leaving a will, in which he provided as follows :—
    
      "IV. Item. — If at the time of my decease no final division or settlement of the estate of my mother, Sarah Horstmann, deceased, shall have been made, I do hereby give, devise and bequeath all my share, estate, right, title, interest, part, purpart, .claim and demand in and to the said estate of my said mother, which I am entitled to or interested in under her will (dated the fifteenth day of October, Anno Domini 1851, duly proven and registered in the proper office at Philadelphia), unto and to be equally divided between my brother and sisters-whom I may leave surviving me, and the lawful issue of such of them as may then be deceased, their heirs, executors, administrators and assigns, in the same and like way and manner with the same limitations and provisions as are expressed and declared in her said will with respect to the shares and interests of my said brother and sisters in and to the said estate of my said mother, my wish being, in the event aforesaid, to relinquish all my estate, claim and demand in and to said estate, in behalf of and for the benefit of my said .brother and sisters, and the issue of such of them as may be then deceased, as. above expressed.”
    William J. Horstmann left surviving one brother and three sisters, being the other four children of Sarah Horstmann, the decedent; Sigmund having, as aforesaid, died before William.
    William at .his death held in Sarah Horstmann’s estate one-sixth part directly under Sarah Horstmann’s will, and one-thirtieth part through Sigmund’s will as aforesaid, therefore under the provisions in William’s will, the trust for Henrietta G. Horrstmann was again increased by one-fourth of William’s one-sixth and one-thirtieth parts, that is by one-twenty-fourth' part, and by one-one-hundred-and-twentieth part of Sarah Horstmann’s estate; and the trust for Henrietta’s benefit was, at her death, as follows :
    One-sixth part directly from Sarah Horstmann.
    Onp-thirtieth part through the will of Sigmund.
    
      One-twenty-fourth part through the will of William, being one-fourth of William’s original one-sixth.
    One-one-hundred-and-twentieth part, through the will of William, being one-fourth of William’s one-thirtieth through Sigmund’s will.
    The sum of these fractions is one-fourth, and the share of Sarah Horstmann’s estate held in trust for Henrietta, at her death, was one-fourth part.
    At Henrietta’s death there survived three children of Sarah Horstmann — G. Henry Horstmann, Emma Thibault, and Lavinia Patterson — and the issue of two children deceased, that is, the issue of Sigmund H. Horstmann and the issue of William J. Horstmann. Among these five stocks the distribution is to be made.
    It was contended by the appellees, Mary H. Hart, Elizabeth H. Lippincott and William H. Horstmann, children of Sigmund H. Horstmann, deceased, that they were entitled to one-fifth of all the one-fourth part of Sarah Horstmann’s estate, held in trust for Henrietta’s benefit at her death; that is, to ■one-twentieth part of Sarah Horstmann’s estate.
    There was no doubt and no contention as to the appellees being entitled to one-fifth of the one-sixth part of the estate held in trust for Henrietta, directly under the will of Sarah Horstmann, and the auditing judge awarded them the one-thirtieth part of the estate; but it was contended that the appellees could take nothing in that part of the estate held in trust for Henrietta by reason of the wills of Sigmund and William, and that such part could go only to the brother, G. Plenry Horstmann, and the sisters, Emma Thibault and Lavinia Patterson. The auditing judge sustained this view.
    The appellees filed exceptions to this adjudication, which were sustained by the Court in banc, in the following opinion, per:
    Penrose, J.
    While the will of Sigmund Horstmann unquestionably gave his interest in his mother’s estate to his surviving sisters and 'brothers and the issue of such of them as might die in his lifetime, to the exclusion of his own children, we can find nothing evincing in any manner an intention to exclude them from participating in the distribution, of the shares of the first takers, at the death of the latter. Such an intention is not to be inferred in the absence of express provisions or necessary intendment. Heirs or next of kin are never deprived of their rights by any forced construction, and all doubts are to be resolved in their favor; Brendlinger vs. Brendlinger, 2 Casey, 132; Rupp vs. Eberly, 29 Smith, 141. Not only is there no evidence of an intention to exclude from such future distribution, but by the references to the will of his mother and the provision that the estate given by him shall pass in the same manner, with the same limitations and provisions as are expressed and declared in her will in respect to the shares of the said brothers and sisters and to her estate, it becomes clear that children were intended to participate whenever under the terms of his mother’s will they would do so. The subsequent declaration that his wish was to relinquish all his interest in his mother’s estate in favor of his brothers and sisters and the issue of such of them as may be then deceased, makes no change in this respect. The reference to issue of brothers and sisters was simply to determine the persons taking at the time of his own death, and has nothing to do with the future devolution of the estate so given. By the mother’s will, which is thus, so far as the present question is concerned, to be regarded, under the maxim “Verba relata ’’ &c., as if its provisions were inserted at length in his own, the shares of sisters were to be held in trust for them for life, with remainder in the event of their death without leaving a husband or issue, to the surviving brothers and sisters or the issue of such as might be then dead. This provision in the mother’s will of course included the children of Sigmund living at the death of a daughter; and as he has said that the shares given by him shall be held in the “same manner and with the same limitations” as expressed in the mother’s will, it would seem that a construction of his will which would carry them in a different manner cannot be the correct one. If his children are excluded at the death of the sisters,, they must be equally so at the death of the brothers; but no one will contend that in the event of the death of a brother intestate and without issue, the children of Sigmund would not be entitled to come in under the intestate-laws. The only difference between the shares of the brothers, and those of the sisters is that the devolution of the one is determined by the statute, and of the other by the provision of the mother’s will. That the children of William, whose will was drawn in precisely the same form as that of his brother, believed that their father intended to exclude them from future distributions, and, acting under the belief, executed a deed to carry such intention into effect, is, of course, wholly immaterial. Their belief is wholly without force, so far as the present question is concerned, even as an argument. Indeed, as an argument, the inference would be from the execution of the deed, that the will had failed to express the intention in the manner that the parties to the deed understood that it really was. We can only construe the will from what it says, and have nothing to do with any supposed intention not appearing on its face, and contrary not only to the language, but to what it is natural to suppose would be the wish of a testator with regard to his children.
    Exceptions sustained, and distribution modified accordingly.
    G. Henry Horstmann and the Fidelity Insurance, Trust and Safe Deposit Company then appealed, and assigned as error the action of the Orphans’ Court in awarding to the children of Sigmund Horstmann the one-fifth of the one-twelfth of Sarah Horstmann’s which Henrietta Horstmann had acquired by the wills of Sigmund Horstmann and William J. ITorstmann.
    
      Wm. H. Patterson, H. G. McCouch and Victor Guillon, Esqs., for the appellants.
    
      B. Hart, Esq., contra.,
    
    argued that the children of Sigmund Horstmann took by virtue of Sarah Horstmann’s will, and not by virtue of their father’s will, and cited: Barger, Hirst et al’s Appeal, 100 Penna., 239.
   The Supreme Court affirmed the decree of the Orphans’ Court on April 20th, 1885, in the following opinion:

Per Curiam.

We discover no error in this decree. We therefore affirm it for the satisfactory reasons contained in the opinion of the ■Court sustaining the exceptions and modifying the decree.

Decree affirmed and appeal dismissed at the costs of the appellant.  