
    Appeals of The Pennsylvania Company for Insurance on Lives and Granting Annuities, Executors, &c. Allen’s Estates.
    1. Where a testator has given absolute interests to several as tenants in common with a gift over upon the death of all without leaving issue surviving them or the testator, cross remainders will not be implied between the legatees.
    2. A testatrix gave two thirds of her residuary estate to her daughter, the remaining third to her husband for life; after the decease of her husband she gave the remainder of the one third to her two step-children and then provided: “In ease of the decease of both oE the said step-children without leaving issue surviving them or me, I give, devise and bequeath the said remainder to my daughter and to each and every other child which may hereafter bo born of me and to their issue, aud in case of the decease of my said daughter and all of said children without leaving issue, &c.,” then over.
    
      
      Held, that the legacies to the step-children were rested, subject to be divested upon the death of both without leaving issue surviving them or the testatrix; that therefore cross remainders between the stepchildren would not be implied, and that upon the death of one of the step-children unmarried and without issue in the lifetime of his father, his interest passed to his father under the intestate laws.
    April 9th, 1885.
    Before Mercur, C„ J., Gordon, Paxson, Trunkey, Sterrett and Clark, JJ. Green, J., absent.
    Appears from the Orphans’ Court of Philadelphia county: Of January Term 1885, Nos. 134 and 136.
    These were appeals by the Pennsylvania Company for Insurancés on Lives and Granting Annuities, executors of William H. Allen, deceased, from decrees of the said court, dismissing exceptions to the adjudication of the account of William H. Allen, deceased, executor of the will of Mary F. Allen, deceased, as filed by the Pennsylvania Company for Insurances' on Lives and Granting Annuities, executors of the said William H. Allen, deceased, and of the account of the said Pennsylvania Company for Insurances on Lives and Granting Annuities, executors of the said William H. Allen, deceased.
    At the audit of the account before Ashman, J., the following facts appeared:
    Mary Frances Allen died in 1857. By her will sbe gave two thirds of her residuary estate to her daughter, Mary Quincy Allen, with certain conditional limitations over. As to the remaining third, she provided as follows :
    “ I give, devise and bequeath to my husband William Henry Allen, the interest, rents and profits of one third of the said residue of my estate during the continuance of his natural life; and after the decease of my said husband I give, devise and bequeath the remainder of said third to my step-children Roland Curtin Allen and Ellen Honora Allen, and in ease of the decease of both of the said step-children without leaving issue surviving them or me, I give, devise and bequeath the said remainder to my daughter Mary Quincy Allen, and to each and every other child which may hereafter be born of me and to their issue, and in case of the -decease of my said daughter and all of said children without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my brothers Samuel Quincy, Edward Gorham-Quincy, and George Hatch Quincy.”
    Letters testamentary on said estate were granted to the husband William H. Allen, who was one of the executors named in the will.
    Roland Curtin Allen died after the death of Mrs. Allen, and in the lifetime of William H. Allen, intestate, unmarried and without issue. Ellen Honora Allen intermarried with Sheldon, and is still living.
    William IT. Allen, as executor of said will, filed two accounts, one July 28th, 1858, and tbe other December 9th, 1864. In the second account, which was a combined principal and income account, he claimed and was allowed credit for a payment of securities valued at $8,550 to the guardian of Mary Quincy Allen. While this second account was before the Auditor, William H. Allen on January 8th, 1866, filed with the latter a supplemental account, and on July 20th, 1866, these accounts were confirmed absolutely. In 1872, Ellen Honora Allen, who at the death of testatrix had been a minor, arrived at full age. In 1882, William H. Allen died. Subsequently Ellen Honora Sheldon (formerly Allen), obtained a citation to his executor to file his account in the estate of Mary Frances Allen, deceased, and upon the filing of such account, together with an account in William H. Allen’s own estate, she asked the court to surcharge William II. Allen as executor with one third of the above sum of $8,550, and to award the same to her out of his estate. As a ground for this request she produced the records of a settlement in the Orphans’ Court of the account of the guardian of Mary Quincy Allen, in which it appeared that William H. Allen had been awarded one third of said $8,550 out of said minor’s estate, not as executor, but as the Auditor’s report and decree read, “ as his sole and separate estate.....in full of all interest in the said estate (of the minor) belonging to said William H. Allen.” This decree had been entered April 15th, 1865. Ellen Honora Sheldon claimed also that upon the death of Roland Curtin Allen his interest in his stepmother’s estate passed to her, and that she was, therefore, entitled to the whole of said money. The executors of William II. Allen resisted this on the ground that it was virtually a review of a decree made sixteen years before, and that in any event Roland Curtin Allen took a vested interest in one half of the sum received, which on his death passed to his father absolutely under the intestate law.
    Tbe Auditing Judge allowed the surcharge and awarded the whole amount thereof to Ellen II. Sheldon.
    There being no balance in the hands of the accountants in the estate of Mary F. Allen, deceased, payment of the amount was ordered to be made out of the balance shown by their account as executors of William II. Allen, deceased.
    Exceptions to these adjudications were dismissed, Pen-rose, J., delivering the opiuion of the court in the estate oi Mary F. Allen as follows :
    It cannot be doubted that the testatrix intended that her two step-children should take the principal of that part of her estate of which the income was given to their father, her husband, for life ; and that she did not intend her own child to take this share at all, unless, at the death of the father, both of the step-children should be dead without leaving issue. Nor can it be doubted that she did not intend the father, in any event, to have more than a life estate in the share thus given.
    The step-son having died without issue in the lifetime of the father, the intention of the testatrix, as manifested by the will, will be defeated unless a limitation in the nature of a cross-remainder be implied in favor of the step-daughter, so as to give her, at the death of the father, the whole. For if the share of the step-son is to be regarded as having absolutely vested in him, it follows that it passed under the intestate laws to the father, whose interest as to one half of the fund thus became absolute, though the will said he should have but a life estate; and the interest which would thus vest in him would in turn have to be divested if the stepdaughter should also die in his lifetime without issue, since in that event the entire share is, by the express terms of the will, to go to the daughter of the testatrix: See Atherton v. Pye, 4 Durnf. & East., 710; Wren v. Clayton, 6 East., 628; Burden v. Burville, 2 Id., 47. If, on the other hand, it became absolutely vested in the father, at his death, the step-daughter having survived him, it must pass, in part, to the daughter of the testatrix, though the will declared she was not to take unless both of the step-children should die without issue.
    It is difficult to believe that such results were intended by the testatrix ; and they are entirely prevented by holding that a cross-limitation is implied in favor of the step-daughter. Such an implication is always a matter of intention.
    The general principles governing cases of this kind are thus stated by Mr. Theobald (Theobald on Wills, 573) : “ When the testator has disposed of his whole interest in realty or personalty, if, for instance, absolute vested interests have been given to several as tenants in common, with a gift over upon the death of all in certain events, cross-limitations cannot be implied between them, as there can be no intestacy, and cross-limitations would divest vested interests: Skey v. Barnes, 3 Mer., 335; Bromhead v. Hunt, 2 J. & W., 459; Baxter v. Losh, 14 Beav., 612; Beaver v. Nowell, 25 Id., 551.
    “If, however, the interests are not vested, but contingent with a gift over upon the death of all before the interests vest, the argument against an intestacy applies, and no argument can be raised against cross-limitations on the ground that they would divest vested gifts, and therefore, in all probability, cross-limitations would bo impliedMackell v. Winter, 3 Vos., 536; Scott v. Bargeman, 2 P. Wins., 68; Graves v. Waters, 10 Ir. Eq., 234.
    The case of Scott v. Bargeman thus referred to is cited by the Auditing Judge as ruling this case. It certainly is not easy to draw a distinction between them; and although it has been criticised in some of the English cases, Scott v. Bargeman has not been overruled, and it lias received the approval of so high an authority as Lord St. Leonards, in Vize v. Sfconey, 1 Dr. & War., 348; Graves v. Waters, 10 Ir. Eq., 234. See Theobald on Wills, 574.
    It is to be noted that the English cases on this subject have not been characterized either by uniformity or consistency. At one time it was supposed that cross-limitations would never be implied between more than two persons; nor where there were express limitations in certain specified cases; nor where the gift was to two or more objects “ respectively;” and it lias been only in comparatively recent years that these notions have been exploded.
    It is clear that there was never an absolute vesting in the step-son in the case now before us. A bequest to any person, and in case of his death to another, is an absolute gift to the first legatee if he survive the testator; but if the bequest be in remainder after a life interest, the gift over is not restricted to death in the testator’s lifetime, but operates during the continuance of the life interest: Hervey v. McLaughlin, 1 Price, 264. And here the gift in effect is to the step-son, or, should iie be dead leaving issue, then to such issue taken substitutionally. It cannot be known then until the death of tho father, whether the person to take will be the son or his issue, and consequently until then there can be no absolute vesting.
    In Baxter v. Losh, supra, cited and relied upon in support of the exceptions, the legatee, in respect of whose share survivorship was claimed by the other legatee, died in the lifetime of the testatrix; and the gift, being of a residue, the share passed under the intestate laws to her (the testatrix’s) next of kin, just as in Yard’s Appeal, 5 Norris, 125; and in Skey v. Barnes, 3 Mer., 334, which was also cited, the death of the legatee whose interest was held to be vested did not occur until after the time appointed for distribution, viz., until after the deatli of the tenant for life, the fact that the legacy was not payable until the legatee attained the age of twenty-one not being material upon the question of vesting: Hawkins on Wills, 226. Neither of these eases is at all in conflict with the ruling of the Auditing Judge.
    Thereupon the Pennsylvania Company for Insurances on Lives and Granting Annuities took these appeals, assigning for error, inter alia, that the court below erred in holding that on the death of Roland Curtin Allen, his share of the fund passed to Ellen Honora Sheldon.
    
      John G. Johnson (with whom was Frank P. Prichard), for appellants.
    Appellants contend that Roland C. Allen took a vested interest to which his father would have been entitled under the intestate laws. They acquiesce in the rules laid down in Theobald on Wills, 573. Mr. Theobald does not mean by “absolute vested interests vested estates free from any liability to he divested. Cross remainders are implied solely to prevent intestacy. If vested interests are given to several persons with a limitation over upon the death of all in certain events, the result of implying a remainder to one on the death of the other would be to divest a vested interest; on the other hand if the interests given are purely contingent, then unless upon the death of one a remainder is implied to the other there will be a partial intestacy: Jarman on Wills, 5th Am. ed., vol. 3, p. 367. In Scott v. Bargeman, 2 P. Wms., 68, the interests were held to be contingent, not vested; though it is probable that they would now be held vested. The bequest over in case of the death of both the step-children, is a substantial gift divesting the previous estate upon the happening of the contingency. It makes no difference whether the gift is vested indefeasibly or subject to a subsequent contingency : Chew’s App., 1 Wright, 24; McKee’s App., 15 Norris, 276.
    
      William M. O'Brien, for appellee.
    Graves v. Waters, 10 Ir. Eq., 234, is almost exactly this case; and defends Scott v. Bargeman from the doubts of its soundness. The intention of the testatrix to imply cross-remainders is manifest from the further limitation to her daughter.
    October 5th, 1885.
   Mr. Justice Paxson

delivered the opinion of the court,

There were two appeals in this case: one in the estate of Mary Frances Allen, and the other in the estate of William II. Allen. They do not require to be separately discussed.

The only assignment of error pressed upon the argument was the third, which alleges that “ The court below erred in holding that on the death of Roland Curtin Allen his share of the fund passed to Ellen Honora Allen.”

The contention grows out of the following clause'in the will of Mary Frances Allen : “I give, devise and bequeath to my husband, William Henry Alien, the interest, rents and profits of one third of the said residue of my estate during the continuance of his natural life ; and after the decease of m v said husband, I give, devise and bequeath tiie remainder of said third to my step-children, Roland Curtin Allen and Ellen Honora Alien, and in case of the decease of both of the said step-children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my daughter, Mary Quincy Allen, and to each and every other child which may hereafter be born of me, and to their issue; and in case of the decease of my said daughter and all of said children, without leaving issue surviving them and me, I give, devise and bequeath the said remainder to my brothers, Samuel Quincy, Edward Gorham Quincy and George Hatch Quincy.”

Roland Curtin Allen died intestate, unmarried and without issue after the death of the testatrix and during the lifetime of her husband, William II. Allen. Ellen Honora Allen intermarried with a Mr. Sheldon, and is still living.

The view taken by the learned court below was that the testatrix did not intend her husband to have more than a life estate in the remainder thus given; that she did intend that her two step-children should take the principal of that part of her estate of which the income was given to their father, her husband, for life ; and that she did not intend her own child to take this share at all, unless at the death of the father, both of the step-children should be dead without leaving issue. In order to carry out this supposed intent, the court held that there was a limitation in the nature of a cross-remainder implied in favor of the step-daughter, so as to give her, at the death of the father, the whole.

The true question is, whether under this will, the stepchildren took a vested interest. If they did, the ruling of the court below was error.

Both sides agree upon the soundness of the rule laid down in Theobald on Wills, 573, in regard to cross-remainders. Mr. Theobald says: “ When the testator has disposed of his whole interest in realty or personalty; if, for instance, absolute vested interests have been given to several as tenants in common with a gift over upon the death of all in certain events, cross-limitations cannot be implied between them as there can be no intestacy, and cross-limitations would divest vested interests. If, however, the interests are not vested but contingent, with a gift over upon the death of all before the interests vest, the argument against an intestacy applies, and no argument can be raised against cross-limitations oil the ground that they would divest vested gifts, and therefore, in all probability cross-limitations would be implied.”

Cross-remainders are sometimes implied to prevent intestacy. When, however, a vested interest is given, there is no intestacy, and the only effect of an implied remainder in such case would be to divest a vested interest. It is obvious upon an examination of the above rules laid down by Mr. Theobald, that when he speaks of “absolute vested interests” he does not mean estates, which, though vested, are liable to be subsequently divested by the happening of a contingent event. The question of cross-remainders arises only when the testator has given a limitation over for the purpose of divesting a vested interest, or perhaps to meet the case of a contingent remainder which has never vested.

In this case the language of the will: “And after the decease of my said husband, I give, devise and bequeath the remainder of said third to my step-children,” clearly gave> a vested interest to the said step-children had it stopped there. Do the subsequent words: “and in case of the death of both of the said step-children without issue surviving them and me, I give, bequeath and devise the said remainder,” &c., convert the gift into a contingent remainder? We think not. It leaves the gift a vested interest subject to be divested upon a future contingency, which has never occurred, to wit, the death of both the step-children without leaving issue surviving them and the testator. The case of Skey v. Barnes, 3 Mer., 335, cited by Mr. Theobald, was considered by Mr. Jar-man as having finally settled the law on the subject. It was said by. the Master of the Rolls in that ease: “With respect to personal property, if a share once vests, though liable to be divested upon a contingencjs the question of reciprocal succession or survivorship can never arise. If the contingency happens, the share goes over; if the contingency does not happen the share remains vested and goes to representatives.” In the later case of Baxter v. Losli, 14 Beav., 612, there was a gift to certain persons for life, and after the decease of the life tenants to the use of and equally between G. and E. But in case it shall happen that the said G. and E. shall neither of them be living at the death of the survivor of the tenants for life, then I give and bequeath the same to F. Sir. John Romilly, Master of the Rolls, said in his opinion : “ I now come to consider the gift over which is, if neither be living at the death of the survivor of the tenants, for life. Scott v. Bargeman, 2 P. Wms., 68, is a direct authority, if any were wanted, for the court holding that this gift over can only take effect in case the event occur on which he directs the gift over to take effect. In this case that event is in case neither of them be living. This never happened, for one is still alive, and therefore the contingency on which the gift over was to take effect has not taken place, and there are no words to be found In the will by which E. (the survivor) can be held to take by implication.”

In Scott v. Bargeman, cited in the foregoing opinion, and also relied upon by tlio Auditing Judge below, the interests were held to be contingent, and for that reason cross-remainders were implied. The principal criticism which has been made upon that case is that the interests should have been held to be vested, and not contingent. It does not appear, however, to conflict with the rule laid down bjr Mr. Theobald.

Our own cases of Chew’s Appeal, 1 Wright, 23, and McKee’s Appeal, 15 Norris, 277, are believed to be in accord with the foregoing views. That the English cases are not all harmonious or consistent may be admitted, but the leaning of the later cases then as well as now, has been to favor the vesting of interests wherever there are reasonable grounds for such construction.

The court below attached much weight to what they believed to be the intent of the testator, and their ruling was evidently designed to carry it into effect. If that intent had been clearly expressed it would govern this case. It is not, however, expressed at all, and is only a matter of inference. It is possible their view as to the testator’s intent may be the correct one, and that Mrs. Allen never intended her husband to have more than a life interest in this third of her estate. It is more probable, however, that the contingency of his inheriting from his children never occurred to her or the draftsman of the will. It often happens that by the death of persons to whom a vested interest has been given, the property passes to some_ one not contemplated by the testator. It may be so here, but the intent of the testatrix is not so evident as to override what we regard as the settled law as to the vesting of a bequest under the will.

The decree is reversed in each estate at the costs of the appellees, and it is ordered that distribution be made in accordance with the views as expressed in this opinion.  