parents for years after his maturity, from time to time turned over considerable sums of money to them; that upon at least two oc

daughter, surviving the mother, will take the whole estate absolutely.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1314; Dec. Dig. § 594.*

For other definitions, see Words and Phrases, vol. 6, pp. 5002-5015; vol. 8, p. 7739.]

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Elizabeth S.

L. Edwards. From an order dismissing exceptions to adjudication, the Fidelity Trust Company, administrator, appeals. Affirmed. Anderson, J., in the orphans' court, filed the following opinion:

casions the father, Morris O'Neill, declared that the property in question was paid for with the son's money. The case of the plaintiff was further strengthened by the fact, as shown by the evidence, that he went into possession of the property at once, and made repairs and improvements, and continued in undisturbed occupancy of the premises, without payment of rent, or other acknowledgment of any ownership in the father, for a period of more than three years. It was also shown that the property was, with the knowl- "The testatrix by her will gave the residue edge and consent of Morris O'Neill, assessed of her estate, both real and personal, in in the name of the son, and taxes were paid trust for the benefit of her daughter, providby him. The testimony of the plaintiff show-ing, however, 'should my daughter Henrietta ed in detail the money earned by him during the period under consideration, and the amounts turned over to his parents for safekeeping, and the assurances given him that his father would act as banker, and that his money would be all right, and would be on hand when needed. Our examination of the testimony has satisfied us that the trial judge was fully justified in finding that the real estate was purchased with the money of the son. If so, a resulting trust would arise in favor of the son. It was his money, and not that of the father, which formed the consideration for the purchase, and which was converted into the real estate. When this fact was established by satisfactory evidence, the plaintiff was entitled to a decree in his favor. "Whenever a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form, liable to the rights of the cestui que trust." Thompson's Appeal, 22 Pa. 16. The evidence shows no agreement by the son that the purchase should be made in the name of the father. The deed was made to him without the knowledge of the son. The relationship of the parties makes no difference. The presumption of a resulting trust in favor of the son arising from the use of his money in making the purchase arises to the same extent as where the purchase is made in the name of a stranger.

We see no merit in any of the assignments of error. They are dismissed, and the decree of the court below is affirmed.

(227 Pa. 299)

In re EDWARDS' ESTATE. Appeal of FIDELITY TRUST CO. (Supreme Court of Pennsylvania. Feb. 21, 1910). WILLS (8 594*)-CONSTRUCTION-NATURE OF ESTATE "OR."

Lowry Edwards not be living at the time of my decease or die without lawful issue, the estate to be divided between my two sons Robert and Francis Augustine Edwards.' By a codicil made in 1889 she revoked the provision in relation to the trust, and appointed her daughter executrix of her will. At the audit a claim was made on behalf of the daughter that the estate vested in her at the death of the mother. The learned auditing judge, without deciding that point, held that as executrix she was entitled to the fund without entering security, citing Keene's Est., 81 Pa. 133. Exceptions having been filed, both on behalf of the daughter and of the accountant as administrator c. t. a., the auditing judge stated at the argument he was inclined to doubt that Keene's Estate was authority for that ruling. The question thus again arises as to the construction of the will, which the auditing judge has intimated might be construed as a dying without issue in the lifetime of the daughter-that is, a definite failure of issue on the ground that in a gift of personal estate a definite failure will be inferred (Eachus's App., 91 Pa. 105), where in gifts of real estate an indefinite failure will be found under the doctrine of Eichelberger v. Barnitz, 9 Watts, 447, and cases in that line, while the erudite counsel for the exceptants has argued with much force that the case is governed by the doctrine of Mickley's App., 92 Pa. 514, Biddle's App., 69 Pa. 190, and Amelia Smith's App., 23 Pa. 9, that the failure of issue refers to a failure in the lifetime of the testatrix. It will be noted that the gift purports to be not of personalty alone, but of all the estate of the testatrix, real as well as personal. Hence the rule of construction applicable to personalty as against real estate cannot be invoked.

"Nor is the question affected by the creation of a trust for the daughter. The gift Testatrix gave her entire estate to her was to her absolutely in the first instance, daughter, providing that if she should not be and the trust superimposed for her protecliving "at the time of my decease or die with- tion, and then for the benefit of the sons in out lawful issue" the estate should be divided between her two sons. Held, that the word case she should not become possessed of it; "or" will be construed to mean "and," and the' in other words, an alternate trust in case

and those children would be deprived of the estate, which would pass over to other persons. It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person in case his son died without issue, and before the age at which the law permitted him to dispose of it, either by contract or by devise; but that he should give him a fee simple, and then deprive his children of it because he happened to die before 21, is altogether unnatural and improbable. The cases, therefore, that have been cited on this subject stand on a foundation not to be shaken.' And Justice Sharswood, in Doebler's App., 64 Pa. 9, puts it thus: 'It is unnecessary to consider now what the word "heirs" means in this connection, because it is abundantly clear, both upon reason and authority, that the clause must be construed as if the conjunctive word "and" were substituted for the disjunctive "or" in the sentence. Upon reason, because, if it is construed disjunctively, the devisee, the testator's only son, who was the first object of his bounty, might die under 21, leaving children, and those children would then be deprived of the estate. This is the literal and grammatical construction of the words as they stand. But this most assuredly the testator never intended. Upon authority, for the courts have uniformly, in wills containing exactly the same language, construed the word "or" to mean "and."' Mayer v. Walker, 214 Pa. 440 [63 Atl. 1011] is not in point, as in that case there was no reason to suppose testatrix intended to use the words except in their natural sense.

the estate should vest in either the sons or the daughter at the death of the testatrix. The trust, however, fell at the making of the codicil, and it has been held that an executed trust does not affect the interpretation of the will. See Smith on Executory Devises, 588; Engel's Est., 180 Pa. 215 [36 Atl. 727]. "We think, however, that the true construction of this will can be reached without going into the intricate questions of definite or indefinite failure of issue, by the application of a rule of construction adopted and applied for the last two or three centuries, both in England and here, and that is by reading the word 'or' in this will as a conjunction equivalent to 'and,' and not as a disjunctive. This reading is founded, not only upon authority, but also upon the natural meaning of the testatrix's will. It is evident from both the will and codicil that the daughter was the primary object of her bounty, and there is no desire to give an estate over unless in the case of the death of both the daughter and the failure of her issue. Now, if we read the will as it is written, and the daughter had married and had issue and then died, prior to her mother's death (which did not occur until some 16 years after the making of the codicil), the issue would have been disinherited. That this was the intent of the testatrix cannot be inferred. In ascertaining the intent of a testatrix we must look at the facts and circumstances surrounding her at the time of the making of the will, and not at the facts as they subsequently occurred. The testatrix would not have made use of the condition of the gift over upon failure of issue if she had not intended that the issue were to take in any case in preference to the remaindermen, while reading the ‘or' as 'and' gives the issue an estate in case of their mother dying being, and that is that the gift over is to take fore the testatrix. This in effect is the opinion of Chief Justice Tilghman in Holmes v. Holmes, 5 Bin. 252, where he reviews at length both the English and American authorities, and in Hauer v. Sheetz, 2 Bin. 532, | and Welsh v. Elliott, 13 Serg. & R. 205, and by Justice Rogers in Beltzhoover v. Costen, 7 Pa. 13, and Justice Sharswood in Doebler's App., 64 Pa. 9, and has been followed to this day. Menoher's Est., 18 Pa. Super. Ct. Rep. 335. Says Chief Justice Tilghman, in Hauer v. Sheetz, 2 Bin. 532: "These principles are sound, and the authorities I have mentioned are founded on them, for in order to effectuate the intent of the testator the word "or" is stripped of its usual disjunctive signification and converted into a conjunction copulative. Why has this been done? Because if it was construed disjunctively, the devisee, who was the first object of the testator's bounty, might die under 21, leaving children,

"Having thus both reason and authority for it, we can, by reading the word 'or' as 'and,' arrive at once at the testatrix's mean

effect only in case her daughter died in her lifetime and without issue, and, upon her daughter surviving her, the real estate vested in her, and she took the personalty absolutely.

"The adjudication is modified to the extent that the award is made to her in her own right, and with this modification it is confirmed, and to this extent the exceptions are sustained."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

John Marshall Gest, for appellant. Howard H. Yocum, for appellee.

PER CURIAM. A majority of the court are of opinion that the decree of the orphans' court should be affirmed, for the reasons stated in the opinion of Judge Anderson.

Rules for the construction of wills are not to defeat, but to carry out, testator's intent; and hence, if that intent is clearly manifested in the will, and is not violative of some rule of law, it cannot be defeated by the application of technical rules of construction.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 952, 955; Dec. Dig. § 439.*] 2. WILLS (§ 594*) CONSTRUCTION LEAVING NO ISSUE."

- "DIE

The clause "die leaving no issue," when used in a will, has a fixed legal meaning, and, in the absence of language in the will disclosing a different intent, imports a general indefinite failure of issue, and not a failure at the

death of the first taker.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1310; Dec. Dig. § 594.*

For other definitions, see Words and Phrases, vol. 3, pp. 2059-2061.]

3. WILLS ($591*)-CONSTRUCTION-"ISSUE."

"Issue" is primarily a word of limitation, and will not be construed as a word of purchase, unless other language of the will requires it to carry out testator's manifest intent.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 591.*

For other definitions, see Words and Phrases, vol. 4, pp. 3778-3782; vol. 8, p. 7693.] 4. WILLS (8 607*) - CONSTRUCTION-ESTATES CONVEYED.

Ann (called Massy Ann in the will) were married, and the former had one child, living. Subsequently a child was born to Martha, which died in infancy. Henry died in 1908, leaving several children to survive him. Emmaline (called Elemina in the will) was the eldest of the four deaf-mutes, was never married, and was about 38 years of age at the date of the will.

In the fifth clause of his will the testator provides as follows: "I give and bequeath unto my daughters Maria E. and Massy Ann, all that certain messuage farm and tract of land * containing seventy six acres more or less, to have hold and occupy the same for and during the natural lives and the survivor of them, and should my said daughters Maria E. and Massy Ann both die leaving no issue the said farm shall go and descend to my son Henry W. Dorney and Elemina and after their decease to their heirs should the said Elemina die leaving no issue, her portion shall go to my son Henry W. and after his decease to his heirs." We agree with the conclusion of the learned court be

low that by virtue of this devise Maria E. and Martha Ann Dorney took a fee-simple estate in the farm devised, but we do not agree with the statement in the opinion that the evident intention of the testator was to

give the farm to his daughters for life and to the survivor of them for life, and if they should die without leaving children living at A will devised realty to testator's two the time of their decease, then over to their daughters "to have, hold and occupy the same brother. If such was the testator's intention for and during the natural lives and the survivor of them," and provided that if they as disclosed by the language of the will, it should both die leaving no issue, then the prop-should be carried out, and the daughters deerty should descend to another son and daugh-clared to take but a life estate in the farm. ter of testator, "and after their decease to their Rules for the construction of wills were not heirs," but should the daughter last mentioned die "leaving no issue," the son should take her made to defeat, but to carry out, the intenportion, "and after his decease to his heirs." tion of the testator in the disposition of his Held, that the first takers took an estate tail, estate; and hence, if that intention is clearly expressly enlarged into a fee-simple estate by manifested in the instrument, and is not vioAct April 27, 1855 (P. L 368). lative of some rule of law, it cannot be defeated by the application of technical rules of construction.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1369; Dec. Dig. § 607.*]

Appeal from Court of Common Pleas, Lehigh County.

Action by Maria E. Arnold and another against Muhlenberg College. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Lawrence H. Rupp, for appellant. Reuben J. Butz and Arthur L. Biery, for appellees.

MESTREZAT, J. William Dorney died on March 22, 1881, leaving a will dated September 18, 1880. He left to survive him a widow and five children, four of whom were deafmutes. Subject to his widow's life estate, and with the exception of a small bequest to the fifth child, Rebecca, to whom he had advanced a sum equal to her share, he distributed his estate among the four deaf-mutes. At the date of the will, Maria E. and Martha

The language of the fifth clause of the will

does not show that the testator meant the estate should go over if the daughters died without leaving children. This interpretation is an assumption that has no basis to support it either in the fifth or any other clause of the will, and is not required to give effect to any other part of the instrument, nor to carry out the general scheme of the testator in disposing of his estate. Hence it is not permissible to construe clause 5 other than its language imports. The fact that the interest in the estate given Emmaline in clause 4 goes over if she "should die childless" cannot defeat the testator's clearly defined purpose, expressed in apt words, to give a different estate in another clause of the testament to another child, when the context does not require it. We may repeat as applicable here what Mr. Justice Dean said

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Appeal from Court of Common Pleas, Phil-him [the contractor] with labor and materiadelphia County.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes