
    FEISER’S ESTATE.
    An absolute bequest may be changed to a life estate by a subsequent clause of •the will.
    Where the will directed a legacy should be paid to a life tenant, without specifying that security shall or shall not be taken ; the Court will order that seourity toe given to protect those in remainder.
    Appeal from the Orphans’ Court of York County.
    John Feiser, late of Dover Township, York County, made his last will and testament devising all his real estate, consisting of two tracts of land situate in said county, to his son Samuel Feiser and his heirs and assigns forever, and immediately thereafter inserts in his will the following clause: “Subject nevertheless to the following restrictions, reservations and payments, namely, to pay unto my daughter Susanna and to her heirs and assigns the sum of three thousand and three hundred dollars'in manner following, to wit, the one-half of the said amount in the next year •after my death, and the residue being sixteen hundred and fifty dollars in five annual payments ; the first payment to be made on the first day of April a year after my decease, and the second, third, fourth and lastly payments on each succeeding first day of April after the first payment is made, and the three thousand three hundred dollars to be a lien on said land bequeathed to my «aid son Samuel until the same shall be fully paid and satisfied.” By the fifth clause of his will the testator provides as follows, to wit: “Fifthly. It is my will if my daughter Susanna should die before her husband and leaving no children back, that that money that I bequeathed her shall fall back to my son Samuel’s children .and. be equally divided amongst them immediately after her death.” On the 11th day of March, 1878, Susanna Rebman presented her petition to the Orphans’ Court of York county, praying the Court to award a citation to Samuel Feiser, the executor ■of said will, requiring him to appear in said Court and show ■cause why he should'not pay over to her so much of the said legacy as was then due and payable, and also why he should not pay over to her the balance thereof when due and payable in ac•cordance with the provisions of the testator’s will, and a citation was awarded as prayed for.
    
      On the 22nd day of April, 1878, the executor filed his answer to said petition and citation, and on the 17th day of August, 1878, he filed a supplemental answer thereto.
    The ease was heard on petition and answer; and on April 12, 1879, the Court directed the payment of the legacy to the petitioner, upon her giving security to protect the children of Samuel Feiser; in the following opinion per
    Wickes, J.
    “Samuel Feiser, the executor of said will, is before’ the Court in obedience to a citation directed to him to show cause why he should not pay over to the petitioner, Susanna Nebman, a certain sum of money bequeathed to her by the said testator.
    “Instead of entering a proforma decree, as we first proposed, to ■e: .able the parties in interest to have the question at issue finally decided by the Supreme Court, we concluded, as a matter of justice to ourselves, and to the appellate Court, but without delaying the appeal, to examine the cases cite.l in the argument and which it was supposed ruled the case before us.
    “The testator left two children — Samuel, the executor of his will, and Susanna, to whom the legacy was bequeathed. Samuel was married and had children. Susanna was also married, but childless, her husband however still living.
    “The testator devised his real estate to his son, “ ‘subject nevertheless,’ ” says the will, “ ‘to the following restrictions, reservations and payments, namely, to pay unto my daughter Susanna and her heirs and assigns the sum of three thousand and three hundred dollars in manner following to wit, the one-half of said amount in the next year after my death and the balance provided for in annual payments.
    “In the fifth clause of the will it is provided — “ ‘if’ my daughter should die before her husband and leaving no children back, that that money that I bequeathed her shall fall back to my son Samuel’s children and be equally divided amongst them immediately after her death.’ ”
    “If the intention of the testator is the Polar Star, as the courts constantly assert, which is to guide us in the construction of wills, it is difficult to see how much doubt can arise in this case, for language could scarcely make it plainer than do the provisions of the will.
    “The testator first charges upon his land a sum of money, which he directs his executor to pay to his daughter “ ‘her heirs and assigns’ ” and specifies the periods and amounts in which the payments shall be made, therefore this legacy vests, and as far as this branch of the will goes, vests absolutely. A. legacy so given, and to vest at a specified time, can only be revoked — for partially it is revoked if converted into a life interest — can only be so altered and contracted by a plain, unambiguous and unequivocal proviso —and when the court is in dubio, it will always prefer the construction of any subsequent clause which should make it consistent with the intention plainly expressed in the preceding part.
    “What then is the qualification or proviso contained in the fifth clause of the will — is it sufficiently plain to operate as a restriction upon the estate previously given?
    “The thought in the testator’s mind is obvious — he doubtless remembered that his daughter was childless and verging upon that period, (then nearly forty-six) when women cease to bear children — and the question presented itself to his mind, whether in the contingency of her dying before her husband and without children, the legacy bequeathed to her should pass to the husband or to his grand children then living and he provided that in event of this happening, the only contingency provided for, this money should go to his “ ‘son Samuel’s children and be equally divided among them immediately after her death.’ ”
    “Is there any rule of law to conflict with this plainly expressed wish ?
    “It cannot be said that the limitation over is too remote, because all the lives are in being, and were at the death of the testator ; Eapp vs. Eapp, 6 Barr, 49. “ ‘Money,’ ” said Judge Duncan, “ ‘may be the subject of an executory devise; but such an excutory devise after an indefinite failure of issue would be void, the contingency being more remote than the law allows; but restricted to the time of the death of the first taker it is good;’ ” Diehl vs. King, 6 S. & E., 31.
    
      “It must be admitted upon principle and authority that when death at afixedperiod, without issue, is the condition of a gift over, an indefinite failure of issue cannot be intended, because the words clearly express the contrary.
    “But it was insisted on the argument of this case, that where an absolute estate is given without restrictions, that a substitutionary clause giving the property to others in the event of the first taker dying without children, will be constructed to mean such dying in the lifetime of the testator ; the cases cited in support of this principle it is asserted rule the question before us, viz : Rewalt vs. Ulrich, 11 Har., 388 ; Mary Biddle’s Estate, 4 Casey, 59, and Edwards vs. Barnard, 3 Norris, 184.
    “There is no doubt of the fact, that the learning of Judges in earlier times, to a restricted construction of the word issue in case of personal estate and thus giving a defeasible intere st to the first taker, has yielded since to what is the more reasonable doctrine of establishing in the legatee at the earliest moment a vested and absolute interest in the subject of the gift. But I do not see that the cases apply, although at the first blush they may seem to do so.
    “In Ulrich vs. Rewalt, the limitation over was held too remote as it doubtless was, under an old and familiar principle of law. In Edwards vs. Barnard, there was a power of appointment given, and it has been repeatedly decided that where a legacy is given absolutely, and a gift over is superadded in event of a legatee dying without having disposed of his legacy, the gift over is void and the legacy is absolute; Green vs. Harvey, 1 Hare, 428 ; Karker’s Appeal, 10 P. P. S., 141. But in the will before us there is no power of appointment conferred, nor is the limitation over too remote.
    “In Biddle’s Estate, the testatrix gave her daughter everything she died possessed of, and “ 'in the event of my daughter’s death without children I give and devise” naming the specific legacies and the persons who were to take them. It was held, under a well settled principle of construction, that the devise to the daughter was absolute, and the subsequent disposition intended to provide for the contingency of the death in the lifetime of the testatrix.
    
      “The principle upon which this and kindred cases are decided, is that when the bequest over is in case of the legatee’s death and no other reference can be made, the period taken is the life of the testator, and the subsequent limitation is introduced to prevent a lapse of the legacy in case the first taker did not survive the testator. Death is certain, and can only be made contingent by reference to its taking place before a certain period, and when no period is mentioned in the will, then it is that the presumption of law arises, that the period of time to which testator refers is the period of possession or payment, that is his own' death, when the legacy will take effect.
    “But another rule quite as well settled is, that when another period can be found, that will be preferred, to avoid the supposition of the testator’s having contemplated and provided against a lapse.
    “Suppose a gift to A., and if he shall die without leaving a child, then to B. Here the event spoken of on which the legacy is to go over, is not a certain, but a contingent event. It is not simply in case of the death of A. but in case of his death without leaving a child; and it would be adding words to the will if it were, to be construed as a condition to entitle B. to take upon the death of A. without issue, if it was to happen at some particular period. In these cases it has always been held, that if A. died without leaving a child, the gift over takes effect, and the legacy vests in B.) Earthing vs. Allen, 2 Madd., 310. Where the gift of a term was to A., and if he should die without leaving issue, then toB., it was held to mean leaving issue at the time of his death. (1 P. Wm. 664.)
    “And again, where the words were “ ‘to A. and his lawful heirs, then to B.’ ” it must be confined to leaving no issue at the time, of death and is a good limitation over. (2 Term R. 120, 3 P. Wm., 258,) Our Pennsylvania cases point in the same direction. In Diehl vs. King, 6 S. & R., 29, the bequest was to a grand son, his heirs and assigns, “ ‘and if he died unmarried and without issue, that then and in such case,’ ” with a limitation over — held good— being to take effect on failure of issue at death of first taker.
    “In Still vs. Spear, 9 Wr., 168, the limitation over was in event of the takers under the will dying “ ‘without leaving issue,’ ” and it was held that the bequest over was good.
    
      “In delivering the opinion of the Court in this case, Strong, J., cites with approval the rules laid down in Smith on Executory Interests, 599, 600, as follows : “ ‘Where personal estate is limited either directly to or by way of executed trust for a person individually, or for life with a limitation over on an indefinite failure o^ issue, the whole interest vests in the ancestor. But where the limitation over is on failure of children only, or on failure of issue within a given time, the ancestor will have a life estate with a limitation over the springing interest, or the entire interest with a conditional limitation over.’” Judge Strong proceeds to say that notwithstanding the doubts which have been expressed in some cases, it is now settled that in gifts of personalty the phrase “ ‘die without leaving issue,’ ” means die without leaving issue at the death of the person ; the failure of whose issue is spoken of,” — and cites a number of cases in support of the doctrine.
    “Again in Bedford’s Appeal, 4 Wr., 18, a testatrix bequeathed personal propei'ty to H. and O. with a proviso in a subsequent part of the will, that - if either should “ ‘die without children,’ ” “ ‘then’ ” the bequests made to either of them should fall back to the survivor and to B. or the survivor of them and the next of kin of such survivor.
    “The court held, that the limitation over was good, “‘that although the word “ ‘children’ ” (ordinarily a word of personal description) may be construed to mean issue, where the context affirmatively shows that the testator intended so to use it, it must be held to its ordinary and usual meaning where no such intention is manitest’” “‘In the will now before us’” said Judge Strong’ “ there is nothing to indicate an intention to confound the words, or use either of them in an_y other than its ordinary signification. Indeed the word “ ‘issue’ ” is not employed by the testatrix. Must we then give to the word “‘children’” a meaning which it does not commonly bear, not to carry out, but to defeat the intention of the testatrix. In relation to the time when the gift over was to take effect, the court said, the testatrix evidently had in mind the death of the first taker, for she declares that then the bequest shall fall back to the survivors, and she names the survivors. They we’re therefore distinctly in her mind’s eye, not persons unborn or unknown, but naturally and presumptively objects of her bounty.’ ” Commenting upon the distinction maintained between rules of construction as applied to devises and bequests of personalty, the Court said “ ‘in the latter case very-slight circumstances are laid hold of, as sufficient to indicate an intention that a limitation over, on death without issue shall take effect at definite time to wit, on the death of the first taker.’ ” The language in the will we are considering is even more signficant than in either cases cited. “ ‘It is my will, if my daughter Susanna should die before her husband, and leaving no children back, that that money that 1 bequeathed her shall fall back to my son Samuel’s children and be equally divided amongst them immediately after her death.’ ”
    “The limitation over is certainly not too remote, the words “ ‘leaving no children back’ ” importing a definite failure of issue. Leaving no children back — when ? Why obviously at the time of Susanna’s death, fixing therefore the period provided for when this limitation over should take effect, not necessarily during the testator’s life, but at any time before or after, when the contingency happened. The provision for an equal distribution “ ‘immediately after her death,”’ strengthens this view of the case. If it was not a definite failure of issue at her death contemplated by the testator how could he provide for a distribution at that time? And further if his purpose was only to provide for her death during his own lifetime, and thus guard against the lapse ot the legacy, he would not have ordered an equal division “ ‘■immediately after her death.’ ”
    “When the testator’s intention is so clear, it is idle to invoke those general principles of construction, which have become maxims of the law. That the first taker is presumed to be the chief object of a testator’s bounty, that in doubtful cases legacies are held to be vested, rather than contingent; absolute, rather than defeasible; and that the primary intent is to be regarded rather than the secondary, if both cannot prevail, are canons of construction, which no Court will question; but they are only intended to operate when the testator’s intention is doubtful, and in our view of the will before us, they do not apply at all. “ ‘They are never allowed to defeat a plain intent expressed.’ ” Stile vs. Spear; 9 Wright, 168. -
    
      «We are therefore, for the reasons set forth in this opinion, impelled to the conclusion that the limitation over, to the children oí Samuel, as provided for in the fifth clause of the will, is good in law, and that therefore the petitioner does not take an absolute estate in the legacy. It only remains to consider the consequences which flow from this conclusion.
    «The petitioner prays the Court to order the Executor to pay this money over to her, upon the assumption that her right to it is absolute : we cannot do this under our view of the law. The Executor retains it in his possession, asserting his right to control it, upon the ground that the legatee has only a life estate, and that he can only be required to pay her the interest. This is a non sequiter.
    
    «The will provides for the payment of this mone}' to Susanna in unequivocal terms, specifying the times and amounts of payment, and we look in vain for any word in the will which in the remotest way indicates a purpose on the part of the testator, that the corpus of the fund shall remain in the Executor’s hands. It shall remain « ‘a lien upon the land/ ” it is true, but how long ? Why until it is « ‘fully paid and satisfied.’ ” There is nothing here from which an implication to the contrary can arise.
    “But if she is entitled to receive this money, is she within the provisions .of/the, Nets of 1834 and 1872, requiring that legacies granted to a person for life or upon a condition or contingency, shall not be paid by the «‘executor’ ” until proper security is given ?
    Fisher vs. Redsecker, 7 Harris, 113, was like this, the case of a legacy payable by a devisee and charged upon his land, and it was held to be within the spirit of the act of 1834; not, it was said, within its equity, for a reason however, which does not apply in the case before us.
    “The case we are now considering does not differ in principle from Bedford’s Appeal, 4 Wright, 18, before cited; and there it was held that the first faker was not entitled to receive the corpus of the legacy, without security to the executor for the legatees over.
    
      “The testator may not have intended this; possibly did not; but we can only say, in looking at his will, that he does not absolve his daughter, as he might readily have done, from this plain requirement of the statute. And we have no authority to do so.
    “If, however, we are in error in this, or any conclusion of law at which we have arrived in the construction of the will, or in the form of our decree, it is a satisfaction to know that our error will be speedily corrected by the Supreme Court.
    “And now to wit: April 12th, 1879, this case having been ar- . gued by counsel and considered by the court, it is ordered, adjudged and decreed that Samuel Feiser, executor and devisee of the real estate of John Feiser, deceased, do pay over to Susanna Rebman the sum of sixteen hundred and fifty dollars, which became due and payable to her in the next year after the death of the decedent, with interest on the same from the 17th day of June, 1877, and that he also pay to her the sum of three hundred and thirty^ dollars, which became due and payable to her on the 1st day of April a year after the death of said decedent with interest on the same from the 1st day of April, 1878, and also that he pay to her the sum of three hundred and thirty dollars, which became due and payable on the 1st day of April, 1879, with interest on the same from the 1st day of April, 1879, and the further sum of money necessary to make up the sum of three thousand and three hundred dollars bequeathed to her by the will of said John Feiser, deceased, in such sums and at .such times as are specified in said will. The sums of money mentioned in this decree, however, shall not be paid to the said Susanna Rebman until she shall give security in such sum and form as this court shall approve, to secure the interests of those persons entitled to receive this money in the event of her dying before her husband, without children.
    “In default of such security being givén it is ordered that the said Exector shall pay the sums of money due and hereafter to become due into the Orphans’ Court from time to time, to be invested under the direction of said court, for the benefit of said Susanna Rebman, and to answer the limitations thereof in the will of John Feiser, deceased. Unless the said Samuel Feiser and Susanna Rebman shall agree in writing, a copy of which shall be filed in this court, to allow the money SO bequeathed to her to remain in the hands of said Executor, a lien upon the real estate devised to him, he to pay the annual interest thereon as the same shall accrue.”
    Susanna Rebman appealed from this decree.
    
      James B. Zeigler and A. N. Green, Esqrs., for appellant argued that:
    “Where there is a general intent and also a particular one, inconsistant with each other, the particular intent must give way to the general one: Dœbler’s Appeal, 14 P F. Smith 9; Yarnall’s Appeal, 20 P. F. Smith 335; Fahrney v. Holsinger, 15 P. F. Smith 388; Haldeman v. Haldeman, 4 Wright 29; Karker’s Appeal, 10 P. F. Smith 141; Hellman v. Hellman, 4 Rawle 439; Edwards v. Barnard, 3 Norris 184.
    The main intent of the testator is not to be overcome by an ambiguous direction in a subsequent portion of the will: Sheetz’s Appeal, 1 Norris 213; Church v. Disbrow, 2 P. F. Smith 219.
    Where an absolute estate is given without restriction, a substi. tutionary testamentary clause, giving the property to others in the event of the first taker dying without children, will be construed to mean such dying in the life-time of the testator: Mary Biddle’s Estate, 4 Casey 59; Rewalt v. Ulrich, 11 Harris 388; Edwards v. Barnard, 3 N., 184.
    The first taker under a will is to be presumed to be the favorite of the testator: McFarland’s Appeal, 37 Penna. St. R. 300; Wilson v. McKeehan, 53 Penna. St. R. 79.
    In the construction of wills, the law, in doubtful eases, leans in favor an absolute rather than a defeasible estate; of a vested rather than a contingent one; of the first taker rather than the second one, as the principal object of the testator’s bounty, and of a distribution as nearly conformed to the general rules of inheritance as possible: Smith’s Appeal, 11 Harris 9; Manderson v. Lukens, ibid. 31; Passmore’s Appeal, ibid. 381; Rewalt v. Ulrich, ibid. 388; Letchworth’s Appeal, 6 Casey 175; Burd v. Burd, 4 Wright 182; Womrath v. McCormick, 1 P. F. Smith 504; Fahrney v. Holsinger, 15 P. F. Smith, 388; Braden v. Cannon, 1 Grant 60; Caldwell v. Skilton, 1 Harris, 152.
    
      That- construction is to be favored which makes an estate vest absolutely at the earliest possible period: Fulton v. Fulton, 2 Grant 28.
    Where lands were devised to J. C. “his heirs and assigns forever,” provided that if he should die without leaving lawful issue, his executors should sell his estate, and divide the proceeds among certain collateral relatives, it was held that. J. C. took an estate tail under the will, which the Act of 1855 enlarged into a fee: Criley v. Chamberlain, 6 Casey 161. See also: Mengel’s Appeal, 11 P. F. Smith 248; Bedford’s Appeal, 4 Wright 18; Matlack v. Roberts, 4 P. F. Smith, 148; Eichelberger v. Barnitz, 9 Watts 447; Biddle’s Appeal, 19 P. F. Smith 190; Ide v. Ide, 5 Mass. Reports 499; Burbank v. Whitney, 24 Pickering 146; Magoffin v. Patton, 4 Rawle 113; Dewart’s Appeal, 20 P. F. Smith 403; 1 Roper on Legacies, 1 Amer. Edi. 376.
    
      J. Krell, Esq., contra, argued that:
    No words in a will can be rejected if any meaning can be assigned to them, and we must endeavor to give such a construction to the will, as will carry out the intent of the testator, if it can be done consistently with the rules of law: Seibert v. Wise, 20 P. F. Smith 147.
    While there is no doubt that of two contradictory clauses in a will the first must give way and the last take effect, yet the two clauses must refer to the same subject matter, and the last must be clearly inconsistent with the first: Sheetz’s Appeal, 1 Norris 213.
    The limitation over, in this will, is not too remote, because confined to a life in existence, and restrained to the death of first taker: Scott v. Price, 2 S. & R. 59; King v. Diehl, 6 S. & R., 31; Bedford’s Appeal, 4 Wright 18.
    The decree made by the Court below, is in accordance with the rulings of the Supreme Court: Bedford’s Appeal, 4 Wr., 18.
   On May 19, 1879, the Supreme Court affirmed the decision of the court below in the following opinion:

Per Curiam.

The legacy of Susanna, the testator’s daughter, was in the first .instance absolute, but by the subsequent clause the testator showed very evidently his intention that in no case should her husband derive any benefit from it. He provides, thereiore, that it she should die before her husband, and leaving no children back, the legacy should fall back to his son's (Samuel's) children. If she survived him, she could dispose of it as she pleased, or it would go to her children. Without the provision under the Act of 1848, if he survived her, he would come in equally with the children. It was perfectly lawful to make such a provision. It changed, thereupon, the absolute character of the bequest, and subjected it to a contingency. The opinion of the Court upon the construction of the will was entirely correct, and the order made was in conformity to the provisions of the Acts of 1834 and 1871, requiring that legacies granted to a person for life or upon a contingency shall Dot be paid by the Executor until proper security is given.

Decree affirmed, and appeal dismissed at the cost of the • appellant.  