#### Dutilh’s Estate.

*Wills*— Construction—Words *purporting death*— Survivorship.

Where a testator directs the income of a trust fund to be paid to his three daughters for their respective lives, and to the "survivors and survivor of them” in case of the death of any without leaving children or issue of a deceased child living at her death, with gifts over of the income of her share, until the death of the last surviving daughter, to the children of any daughter who may die leaving children or issue, the words of survivorship refer to the deaths of the daughters, and, on the death of one of them without issue, the income of the fund held in trust for her is payable to the surviving daughter to the exclusion of the children of a deceased daughter.

Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1885, No. 323.

*Clement B. Wood,*for exceptants; *Charles F. Da Costa,*contra.

May 26, 1922.

Gest, J.,

The testator bequeathed $350,000 in trust to pay the income to his wife (who survived him) for her life, and after her death (which event since occurred) to pay the income to “my daughters, Mary D. Bell, Emily Dutilh and Catharine M. D. Grugan, and the survivors and survivor of them, in case of the death of either without leaving any child or issue of any deceased child living at the time of her death, share and share alike, for and during the full term of their respective lives, for their sole and separate use. But if either of my said daughters shall die leaving a child, children or issue of any deceased child living at the time of her death, the share of income of such deceased daughter shall be paid over and appropriated to *the*support, maintenance and education of such child, children or issue of deceased children, share and share alike, such issue, however, taking or receiving only the parent’s share till the time for distribution of said Trust Fund, namely, the death of the survivor of my said daughters.”

Of these three daughters, Mrs. Grugan died in 1917, leaving two children, Charles D. Grugan and Emily D. Agnew, and Emily Dutilh died in 1921, unmarried and without issue. The question before the auditing judge, as stated by him, arose as to the disposition to be made of the share of income, one-third, which Emily Dutilh received in her lifetime. Is it payable to Mrs. Bell, or is it payable one-half to Mrs. Bell and one-half to those taking through Mrs. Grugan? The auditing judge awarded the entire one-third of the income to Mrs. Bell, so that she will receive two-thirds of the income of the whole estate, and these exceptions were filed to this award.

We are of opinion that the award made by the auditing judge is correct. The direction is to pay over the *income*of the trust fund to the three daughters *nominatim,*and the survivors and survivor of them for their respective lives, and this can have no other meaning, in the absence of some further direction, than to give the income to the three daughters as joint tenants. The will, it should be observed, does not merely speak of the “survivors of his children,” but the “survivors and survivor” of them, the use of the word “survivor” in the singular number showing clearly that the testator contemplated the event of there being a single surviving daughter, and pointing definitely to the death of each daughter as determining the period of survivorship. The testator, indeed, confines this meaning to the event of the death of a daughter without leaving children or issue living at the time of her death, and proceeds in the next paragraph to provide that, in case a daughter leaves issue living at the time of her death, the deceased daughter’s share of the income shall be used for the support and maintenance of her issue until the period of distribution of the capital of the fund; that *is,*the death of the survivor of the three daughters. The words of survivorship cannot, as is *613argued by the learned counsel of the exceptants, be referred to the death of the testator or to that of his widow; they refer to the death of any of the daughters. Whatever in any contingency is given to Mrs. Grugan is for her life only, and there is nothing in the will to show that the testator intended to give any greater income to her children than that which she enjoyed during her own lifetime. So when Mrs. Grugan died, her children came into the enjoyment of her share; but Emily Dutilh left no children, and the surviving daughter becomes, in our opinion, entitled to her share.

There is nothing unusual or unnatural in such a provision. As we said in Craig’s Estate, 24 Dist. R. 851, which case, as the auditing judge justly said, has some points of similarity to the present, the will seems to show the testator’s desire to make his own children as recipients of the income the primary objects of his bounty until the death of the survivor of them in preference to grandchildren or remoter issue.

The cases relied upon by the learned counsel of the exceptants do not, in our opinion, affect the present question, which concerns only the distribution of income. As to this we think the language of the will is sufficiently clear, irrespective of authority, but we may refer to Cranswick *v.*Pearson, 31 Beavan, 624, and Begley *v.*Cook, 3 Drewry, 662, as possessing some similar features.

The learned counsel of the exceptants argued that this construction of the will as to the income now before the court would logically lead, on the death of Mrs. Bell, to an unequal and unjust distribution of the principal, as it might result in her children or issue receiving two-thirds of the fund, while Mrs. Grugan’s children would receive but one-third, the will providing as to this distribution that “upon the death of the survivor of my said daughters, I will and direct that the said Trust Fund shall be distributed to and among the children and issue of any deceased child then living, of my said respective daughters, in such manner and proportions as she shall have directed in any last will, testament or appointment in the nature thereof, duly made and executed by her in respect to the share or portion, the income of which was paid to her as aforesaid. And in default of such last will, testament or appointment, to and among such children and issue of deceased children then living, share and share alike, such issue, however, taking only the parent’s share. And in default of such last will, testament or appointment and of children or issue of deceased children then living, then in Trust for such persons as would be entitled thereto under the intestate laws of Pennsylvania, if she had died possessed thereof single and unmarried freed from all trusts whatever.”

It is perhaps sufficient to say that this question does not arise at the present time, and its solution cannot now be determined: Willard’s Appeal, 65 Pa. 265; a rule that has always been followed in this court: Hano’s Estate, 8 Dist. R. 353; Glanding’s Estate, 15 Dist. R. 985; Wears’s Estate, 25 Dist. R. 30. While we, therefore, refrain from even any discussion of the question, we may observe that the interpretation of the will as to the distribution of the principal is very susceptible of argument, and when this question comes before us in due time, it will be approached with an open mind.

The exceptions are dismissed and the adjudication is confirmed absolutely-