
    Huddy’s Estate.
    
      Wills — Vested and contingent interests — Construction—Trusts —Life estates.
    
    Where a testator bequeathed his estate in trust for the benefit of a niece for her life, and after her death to pay the income to her five children in equal shares and to the children of any of said niece’s children who might be deceased, such children to take their parent’s share, until the death of the last of the said niece’s children, and then to distribute the principal between said niece’s grandchildren and the issue of any grandchildren who might be deceased, per stirpes, and one of the children of the niece died during her mother’s lifetime without issue, her interest in the income terminated, and her executor was not entitled to such decedent’s share of the income accruing between the time of her death and the period of distribution of the principal.
    Argued March 21, 1917.
    Appeal, No. 396, Jan. T., 1916, by Edwin H. Moore, surviving Executor of Helen W.. Fagan Moore, deceased, from decree of Superior Court, Oct. T., 1915, No. 359, reversing decree of O. C. Philadelphia Co., 1905, No, 370, dismissing exceptions to adjudication in Estate of Henry Huddy, Deceased.
    Before Brown, C. J., Stewart, Moschzisker, Frazer and Walling,'JJ.
    Affirmed.
    Appeal from Superior Court.
    From the record it appeared that Henry Huddy, the testator, died on April 24, 1904, leaving a will by which he provided, inter alia, as follows: “Third — I give and bequeath the following legacies free of collateral inheritance tax to wit:
    “To the five children of my niece, Eliza M. Fagan, to wit: Emma, Clara, Helen, Edgar and .Benjamin Fagan, each the sum of three thousand dollars ($3,000).
    “Fourth. All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever situate, I give, devise and bequeath unto The Fidelity Insurance, Trust and Safe Deposit Company, In Trust, to hold and invest the same, and to keep the same invested in such securities as I may leave or in such other securities as they may deem for the best interests of my estate, and to collect the income thereof, and to pay the same unto my niece, Eliza M. Fagan, for and during all the term of her natural life: From and immediately after her decease, then to pay the said income in equal shares to her children as above set forth and to the children of any of her said children who may be deceased, such children to take their parents’ share, until the death of the last of my said niece’s children: When that occurs, I direct that the principal of my estate shall be divided in equal shares between my said niece’s grandchildren and the issue of any grandchildren who may be deceased, per stirpes. It is my will that the income so to be paid to my niece and her children shall be paid quarterly, and shall not be subject to assignment, anticipation, or alienation, nor to the debts of any of the beneficiaries, but that the same shall be held to be applied for their maintenance and support.”
    Helen Fagan married Edwin H, Moore, and died without issue on April 6, 1910, leaving a will by which she appointed as executor her husband, Edwin H. Moore. Eliza M. Fagan, the testator’s niece, died on December 27,1912. The trustee thereupon filed an account, by the final adjudication of which it was decreed that the executor of Helen W. Moore was entitled to one-fifth of the income derived from the estate.
    The lower court dismissed the exceptions to the adjudication. Clara H. Fagan appealed.
    Further facts appear in Huddy’s Estate, 63 Pa. Superior Ct. 34, and in the following opinion of the Superior Court by Eephart, J.: -
    The question raised on this appeal relates to the nature and distribution of the estate to which the children of Eliza M. Fagan were entitled under the will of Henry Huddy. The testator gave his estate to the Fidelity Insurance, Trust and Safe Deposit Company to hold and invest “and to collect the income thereof and to pay the same unto my niece, Eliza M. Fagan, for and during all the term of her natural life: From and immediately after her decease, then to pay the said income in equal shares to her children as above set forth and to the children of any of her said children who may be deceased such children to take their parent’s share, until the death of the last of my said niece’s children: When that occurs, I direct that the principal of my estate shall be divided in equal shares between my said niece’s grandchildren and the issue of any grandchildren who may be deceased, per stirpes. It is my will that the income so to be paid to my niece and her children shall be paid quarterly, and shall not be subject to assignment, anticipation or alienation, nor to the debts of any of the beneficiaries, but that the same shall be held to be applied for their maintenance and support.” One of the children of Mrs. Fagan, Edgar Fagan, died in the lifetime of the testator. Another child, Helen, who was married to Edwin H. Moore, died without issue April 6, 1910, after having made a will in which she appointed her husband an executor. Eliza M. Fagan, the testator’s niece, died December 27,1912. The contest here arises over the distribution of the income bequeathed to Helen Fagan Moore. The conclusion of the Orphans’ Court was that the interest bequeathed' to her was an estate pur autre vie; that it was vested and -that it continues until the death of the survivor of the grandchildren of Eliza M. Fagan, and that the case is within the interpretation applied in Little’s App., 81 Pa. 190; Leech’s Est., 228 Pa. 311, and Harned’s Est., 54 Pa. Superior Ct. 47. It was held that as the bequests to the children of Mrs. Fagan were “to her children as above set forth,” that is, nominatim, there was no right of survivorship and that as there was a presumption against intestacy the gift was absolute to Mrs. Moore during the life of the survivor of her nephews and nieces. The view presented by the appellant is that the will exhibits an intention on the part of the testator to preserve the estate for the grandchildren of Eliza M. Fagan and their issue until the death of the survivor of the grandchildren of Mrs. Fagan when division is to be made per stirpes; and in the meantime to provide for the support of his niece and her children for their lives and that the case is not controlled by any presumption of intent or affected by the doctrine of survivorship but should be disposed of in the same manner as was done in Rowland’s Est., 141 Pa. 553, in which it was held that the administrator of a deceased son of the testator to whom was bequeathed a proportionate share of the income of the estate and who died without issue was not entitled to the share bequeathed to that son; that the provision for payment to the testator’s children or the issue of any who may have died created two classes:' children of the testator, and issue óf deceased children; and that as the son died without issue he fell out of the first class and was not represented in the second. The cases relied on by the court below were all determined on the ground that no intention of the testator was disclosed to give any other effect to the bequest than that of an absolute gift. It is contended here, however, that there is a definite expression of an intention inconsistent with the conclusion that any other person than the niece or her children or the issue of her children can take under the will. A comparison of this will with that in Rowland’s Estate shows a very close resemblance. In the latter there was a direction to divide annually the net balance of income equally per stirpes and not per capita between the testator’s children and the issue of his children that may at any time have died leaving issue, until the death of the survivor of said children, the principal of the estate to be held until the death of every one of the testator’s children and at the death of the last of them to be divided equally per stirpes between the issue then living of the testator’s children. In the pending case the will provided for the payment of the income in equal shares to the testator’s children who had been named in a preceding part of the will and the children of any who may be deceased, such children to take their parents’ share. Payment was to be made quarterly the fund not to be subject to assignment, anticipation and alienation, nor to the debts of any of the beneficiaries, but was to be held to be applied for their maintenance and support. No distinction is apparent in the two cases which leads us to a conclusion that Rowland’s Estate should not control the one which we are called on to decide. The situation of the son in the former case is identical with that of the appellee here and the evidence of intention is indeed stronger in this case than in the other for the bequest is not only protected by a spendthrift’s trust, but is especially appropriated to the maintenance and support of the legatee. The “beneficiaries” referred to in the will are no others than the niece, Mrs. Fagan, her children, and her grandchildren. These are the persons for whose benefit the property is set apart and the purpose of the testator is apparent to so control 'its destination as to result in their benefit and advantage exclusively. The other view of the case diverts it to strangers' and subjects it to possible liability for the debts of those who are alien to the testator’s blood and strangers to his bounty. If. the distributees are treated as two classes, viz: the children of Mrs. Fagan and her grandchildren, as was done in Rowland’s Estate no question of survivorship arises nor is there an intestacy. The deceased legatee had a vested interest in the income for her own life. The distinction sought to be drawn between Rowland’s Estate and this case, because in the former there was provision for an annual division of the income per stirpes, is not convincing in view of the fact that a quarterly division was provided for by the testator here and it was directed that the grandchildren should take their parents’ share which is as clearly an arrangement for distribution per stirpes as if a technical phrase had been used for that purpose. The fact that payment was to be made in one case annually and in the other every three months is not a controlling consideration. In Little’s Appeal, supra, there were no words in the will to show an intent to limit the gift of the income to the legatee for her own life. There was no gift over of the income on the death of Mrs. Little, nor was there anything in the will showing an intention to provide otherwise than that the estate should pass to her legal representatives at her death. The absence of a gift over and of an expressed intention as to the use and enjoyment of the income gave support to the determination of the court that the gift was absolute in the first taker pur autre vie. Of like import is Hildebrant v. Hildebrant, 42 Pa. Superior Ct. 190. In Leech’s Estate, supra, there was express provision for payment to the widow of either of the testator’s sons as such son might by his last will direct and appoint, and there was no feature of the whole will which suggested an intention to give less than a full and absolute estate in the income to the legatees. All of the cases following Little’s Appeal are distinguished by the absence of any purpose of the testator to appropriate the estate exclusively to a class of legatees, and in that respect this case belongs to the class of which Rowland’s Appeal and Babcock’s Est., 18 Pa. D. R. 453, are illustrations. Our conclusion is that by the terms of the testator’s will the distribution was limited to the children of Eliza M. Fagan and their issue for the purpose stated in the will and that the interest of Helen Fagan Moore in the income terminated with her death. It follows, therefore, that the decree should be reversed and distribution made accordingly.
    Edwin H. Moore, surviving executor of Helen W. Fagan Moore, deceased, appealed from the decree of the Superior Court.
    
      John D. MoMullin, .for appellant.
    
      A. H. Wintersteen, for appellee.
    April 16, 1917:
   Per Curiam,

The clearly expressed intention of the testator confines the distribution of the income from his estate to the children of his deceased niece, Eliza M. Fagan, and their issue. This was the correct conclusion of the Superior Court: Huddy’s Estate, 63 Pa. Superior Ct. 34. Helen Fagan Moore, a grandniece, having died without issue, her interest in the income terminated with her death: Rowland’s Est., 141 Pa. 553. Appeal dismissed and decree of Superior Court affirmed at appellant’s costs.  