
    Eckert v. Pennsylvania Trust Company, Appellant.
    
      Wills—Devise—Estate in fee simple.
    
    Testator after having made devises to his two sons out of the residue of his estate directed as follows: “I give, devise and bequeath to my two sons above named their respective shares aforesaid of the final residue of my estate to hold the same to said sons respectively, their respective heirs, executors, administrators and assigns, subject during their respective minorities, to the provisions hereinbefore and hereinafter contained.” By a subsequent clause he directed as follows: “If any or either of my said children or two last named grandchildren shall die without issue at his, her or their respective deaths, or leaving such issue then living none of whom shall live to attain the age of twenty-one years then and in any and every such case it is my will,” etc. Held, that a son upon reaching the age of twenty-one years was vested with an absolute fee simple in the property devised to him.
    Argued March 14, 1905.
    Appeal, No. 43, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Dec. T., 1900, No. 5, on verdict for plaintiffs in case of Thomas T. Eckert, Reading Trust Company, trustee for the estate of Emma B. Hill, and Emma B. Hill v. Pennsylvania Trust Company et al.
    Before Dean, Fell, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Summons in partition.
    Verdict for plaintiffs subject to question of law reserved.
    On a rule for judgment for defendants, non obstante veredicto, Endlich, J., filed the following opinion :
    The single question to be determined in the disposition of these rules is whether, under the will of Jacob W. Seitzinger, his son Franklin, after reaching the age of twenty-one years and after appraisement, etc., as directed in said will, liad an absolute interest in his share of the residue of the testator’s estate or an interest defeasible upon his death without issue living. Tf the former, it passed to his widow, Joanna C. Eckert, to whom he left his entire property, and the verdict directed at the trial was right. If the latter, then Joanna C. Eckert was * never a tenant in common together with the remaining parties to this action of the property of which partition is sought, and the defendants are entitled either to judgment notwithstanding the verdict or to a new trial.
    The will of Jacob W. Seitzinger is a very lengthy one, drawn, as pointed out in Newbold v. Boone, 52 Pa. 167, 176, by an eminent professional hand. In the copy submitted the paragraphs have, for the sake of convenience, been numbered from 1 to 48, and may be referred to according to that numbering, although it does not appear in the original. The testator died twenty-six days after the will was made. He liad at the date of the will several daughters, two sons (Jacob, aged eighteen, and Franklin, aged eleven), a grandson (aged eleven, who died in 1859, under twenty-one years old), and a granddaughter (aged six years). All these, and his widow (who died in 1866), survived him. Ever since the death of Franklin, in 1868, the parties concerned treated his widow as a co-owner of the property embraced in the residue to the extent of her husband’s proportion therein liad he lived.
    The directions as to the residue begin in paragraph 20. In that and the next succeeding paragraphs, 21, 22 and 23, the testator (providing for a period of management by his executors with a view to payment of his debts), defines how the “ residue ” shall be made up and how it shall be divided into equal twelfth parts. In paragraph 24 he orders that two twelfth parts shall be conveyed or assigned to each of his two sons respectively and their respective heirs, two twelfth parts to the trustees of the shares of three daughters in his estate, one twelfth part to the trustees of his granddaughter’s share, and one twelfth part to the trustees to whom he has already given a legacy in trust for his grandson. Next comes a series of paragraphs, 25 to 31, in which he enumerates, by way of restating all that he intends to go to each of the beneficiaries, just what the share of each under the entire will shall consist of; directing in paragraph 31 that the several shares thus defined shall be subject to deduction for any indebtedness due to the testator at his death by the respective beneficiaries, and following that with the declaration, in paragraph 33, that the designation of the respective portions of his estate, thus described, “ as the shares of my respective children and grandchildren,” is not to be understood as defining the “ duration or character ” of the interests to be taken by them “ as the same are hereinafter specified.” Then he goes on, in a series of paragraphs, to “ specify ” the duration and character of the interests to be taken by his various beneficiaries in their shares. In paragraph 34 he “ specifies ” his daughters’ and granddaughter’s shares as separate life interests with power of testamentary appointment subject to certain benefits to surviving husbands, etc. And then comes paragraph 35, whose purpose it is to “ specify ” the “ duration and character ” of the interests of the sons, and which is as follows :
    
      “ I devise and bequeath to my two sons above named their respective shares aforesaid of the final residue of my'estate to hold the same to said sons respectively, their respective heirs, executors, administrators and assigns, subject during their respective minorities to the provisions hereinbefore and hereinafter contained.”
    Here is an unmistakable announcement that Franklin is to take an absolute interest in his share, except as qualified by the subjecting clause. The effect of the words “ during their respective minorities ” in that clause is necessary to limit to the remainder of Franklin’s minority the application and operation of anything in the will, preceding or following paragraph 35, by way of restriction or impairment of the absolute interest given him. Expressio unius est exclusio alterius. In paragraph 36, relating to the share of his grandson, the testator expresses an exactly similar purpose in language somewhat more ample because of the interposition of trustees during minority. The grandson was six days younger than Franklin. Surely the testator cannot be supposed to have meant to invest this grandson with the absolute ownership of his share at twentjr-one, and continue his son’s interest in the share set apart for him liable to defeasance beyond that age. On the contrary there is discernible throughout the will a studied purpose on the part of the testator to give to his sons (or perhaps, in view of the circumstances pointed out in Newbold v. Boone, 52 Pa. 167,174, it might be more accurate to say to his younger children, who were his sons), estates of inheritance ; carefully and persistently discriminating in this respect between them and his daughters (or older children), and suspending the full vesting of their shares in the sons and their full control over them only during the pendency of the temporary management of his estate with a view to the payment of his debts and during the respective sons’ minorities. So in the 13th and 14th paragraphs, the devises are to Jacob and Franklin respectively in fee, with retention of control to the executors during minority, etc. In the' 15th paragraph he bequeaths to Franklin absolutely $9,000, to be raised out of the residuary estate, “ to be paid to him.” on majority, and “ to be subject in the meantime to the provisions hereinafter contained,” etc. Again in the 24th paragraph, after providing for the ascertainment' of the residuum, he directs his executors to convey and assign two twelfth parts to each of his sons respectively “ and their respective heirs,” whilst his daughters’ shares are ordered to be transferred to their trustees. When he comes to restating in detail, in paragraphs 25 to 31, what he understands the share of each beneficiary in his entire estate to consist of, he enumerates, in paragraph 31, as making up the share of his son Franklin the devise in paragraph 14, the bequest in paragraph 15, and the two twelfth parts of the final residuum directed to be transferred to him in paragraph 24. Of course he must be understood as referring to all of these according to the qualities previously impressed upon them. See Klapp’s Est., 19 Pa. Superior Ct. 150, 154. And so, as to his other son, in paragraph 30. The subsequent specification, in paragraph 35, of the duration and character of the sons’ interests in the shares thus made up puts all the items composing them upon the same level, subjects them all to the same qualification by reference to the preceding and succeeding provisions in the will, and restricts the operation of these to the periods of the sons’ respective minorities. Moreover, the reference' is to “ the ” provisions, which necessarily means all the provisions (see Bakes v. Reese, 150 Pa. 44, 46) of the will capable of affecting the absoluteness of the gifts to the sons, their control, ownership and devolution. To give due effect to the testator’s language and intent all must, if possible, be brought in. It would seem, therefore, to follow with unavoidable necessity that wlien in paragraph 43 the testator provides that upon the death of any of his enumerated children or grandchildren without leaving issue, or leaving issue who shall not survive to maturity, the share of such decedent shall go to increase the shares of the other children and grandchildren, that provision must, so far as Franklin’s share is concerned, be understood as referring to his death before reaching the agé of twenty-one. So understood it is perfectly consistent with the terms of all the devises and bequests made to him, and the general intent disclosed in those provisions, giving him but a qualified interest in their subject-matter during minority to become absolute upon maturity. ,On the other hand, it is manifest that to treat the 43d paragraph as defeating Franklin’s interest in anything that had been left to him, upon the contingency of his dying without issue, etc., at any age, is to construe it as derogating from the previously expressed intent. The rule is too well established to require the citation of authorities, that whilst of two contradictory provisions relating to the same subject-matter, the first must give way and the last takes effect, the inconsistency between the two must be clear and irreconcilable, and that it is the business of the interpreter to read, if possible, all the provisions in pari materia together and construe them as an harmonious whole. Standing alone, to be sure, there could, since Newbold v. Boone, 52 Pa. 167, be no uncertainty about the effect of the 43d paragraph. But it cannot be successfully maintained that the latter may not be read together with, or into, the 35th paragraph in so far as it is capable of applying to the same. The language of the 43d paragraph is as follows :
    “ If any or either of my said children or two last named grandchildren shall die without issue living at his, her or their respective deaths, or leaving such issue then living, none of whom shall live to attain the age of twenty-one years, then and in any and every such case it is my will that the shares or portions of my estate of him, her or them so dying shall go to increase the said shares of my other children (except my daughter Elizabeth) and two last-named grandchildren in the last-mentioned proportions, that is to say, the share of each of my said children other than Elizabeth to be twice as great as those of my said two grandchildren, the children of my said deceased daughter, under and subject in each case to the same respective trusts and limitations hereinbefore expressed and declared.”
    It is contended that, inasmuch as this provides for the dying under age of the children of the testator’s children and even of those of his enumerated grandchildren, it would be an absurdity to attempt to read this provision into paragraph 35 as a proviso to it, beginning with the words “ subject during their respective minorities.” It is said that the period thus designated cannot by any possibility be made to comprehend the time and contingencies contemplated in paragraph 43, and that, therefore, the language of the latter cannot be fitted into that of the former. It must, however, not be overlooked that it is the substance and effect of the language used that we are concerned with rather than the mere sequence of its phraseology. See Ferry’s App., 102 Pa. 207 ; Klapp’s Est., 19 Pa. Superior Ct. 150. Drawn in compact and artistic terms the 43d paragraph provides in one sentence, of broad generality, for a number of things: (1) for the death of testator’s sons without leaving any issue; (2) for the death of testator’s sons leaving issue who shall not live to maturity; (3) for the death of three of the testator’s daughters (for clearly Elizabeth is not included among “ my children ” as first used in it) without leaving any issue ; (4) for the death of those daughters without leaving issue who shall live to maturity; (5) for the death of certain grandchildren without leaving any issue; and (6) for their death without leaving issue who shall live to maturity. In crowded terms it directs what in each of these cases is to become of the shares left by the, will to the decedent. In order to apply this direction to each of the several beneficiaries or classes of beneficiaries, it is of course not only permissible but necessary to separate the complex provision into its various constituent parts, reddendo singula singulis. As pertinent to the shares spoken of in paragraph 35, it may therefore be read as follows :
    “If ... . either of my said (sons) .... shall die without issue living at his ... . (death), or leaving such issue then liying none of whom shall live to attain the age of twenty-one years .... then .... it is my will,” etc.
    Inserting this provision in paragraph 85, the clause “ subject,” etc., would read thus:
    “ Subject during their respective minorities to the provisions hereinafter contained that if either of my said sons shall die without issue living at his death, or leaving such issue then living,” etc.
    Now it seems too manifest for discussion that the language “ subject during their respective minorities to the provisions hereinafter contained that if either .... shall die without issue,” etc., is exactly equivalent to saying “ subject to the provisions hereinafter contained that if either . . . . shall die during minority without issue,” etc. That transposition may, therefore, be made, and the clause so read: and so read, there is not the slightest difficulty or incongruity about inserting paragraph 43 into paragraph 35,—with the effect above indicated the two paragraphs together providing:
    “ I devise and bequeath to my two sons .... their respective shares aforesaid .... to hold the same to my said sons respectively, their respective heirs, executors, administrators and assigns (i. e., absolutely) .... subject to the provisions . . . . hereinafter contained that .... if either .... shall die during minority without issue living at his death, or leaving such issue then living none of whom shall live to attain the age of twenty-one years, then it is my will, ” etc.
    Under this devise, Franklin, upon reaching the age of twenty-one years and after appraisement, etc., as directed by the will, was vested with an indefeasible interest in the property here in question, which passed to his widow by his will.
    The rules to show cause are discharged.
    
      Error assigned was in entering judgment on the verdict.
    
      Oyrus G. Derr and John G.-Johnson, with them Benjamin E. Dettra, for appellants,
    cited: Fahnestock’s Estate, 147 Pa. 327; Bakes v. Reese, 150 Pa. 44; Hitchcock v. Hitchcock, 35 Pa. 393; Walker v. Walker, 28 Pa. 40; Rewalt v. Ulrich, 23 Pa. 388; Malone v. Dobbins, 23 Pa 296; German v. German, 27 Pa. 116; Stickle’s App., 29 Pa. 234.
    
      Jefferson Snyder, of Snyder Zieber, for appellees,
    cited: Caldwell v. Skilton, 13 Pa. 152; McCullough v. Fenton, 66 Pa. 418; Morrison v. Truby, 145 Pa. 540; Mitchell v. Ry. Co., 165 Pa. 645; Schoonmaker v. Stockton, 37 Pa. 464.
    June 22, 1905:
   Per Curiam:,

The judgment is affirmed on the opinion of the learned judge of the common pleas.  