Frank D. Prather and Peters & Prather, Meadville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 406]
This is an appeal from the order of the Orphans' Court of Crawford County dismissing exceptions to an auditor's report and confirming finally the report and schedule of distribution annexed thereto.
The facts are undisputed. Evans W. Shippen died testate on March 20, 1910. The eleventh paragraph of his will was a gift of the residue of his estate to his daughter, Katharine S. Tarr, one-third of which was to be held in trust for his son, Henry H. Shippen, as provided in the fourth paragraph of the will. The last mentioned paragraph was a devise and bequest of two pieces of real estate and a sum of money to the same daughter to be held in trust for Henry H. Shippen for life, and in the following terms provided for the distribution
[ 170 Pa. Super. Page 407]
of the trust estate upon his death: 'If said Henry shall die leaving lawful issue, said trustee * * * shall pay the net income to such issue, or for their benefit at her discretion; and may at her discretion convey all or any part of said trust estate to such issue. But if there be no such issue then said trust estate shall descend to my nearest of Kin then living, according to the laws of the State of Pennsylvania.' (Emphasis added.)
The life tenant died on September 17, 1949, unmarried and without issue. The descendants of Evans W. Shippen then living included two nieces, a nephew, and thirty-three grandnieces and grandnephews. The schedule of distribution, confirmed by the court below, provided that the balance in the hands of the substituted trustee for Henry H. Shippen be equally divided between the two nieces and the nephew to the exclusion of all other descendants of the testator more remote in degree. A grandnephew appeals.
Whether the distribution made is in accordance with the terms of the testamentary trust depends on the meaning to be given the wording 'said trust estate shall descend to my nearest of Kin then living, according to the laws of the State of Pennsylvania,' contained in the fourth paragraph of the will.
As used in wills, the word 'descend' is often regarded as a general expression equivalent to the words 'go to' or 'belong to,' and as indicating a passing of title by the force of the will rather than of the statute. Klingman v. Gilbert, 90 Kan. 545, 135 P. 682, 684; Wise v. Wise, 109 Ind.App. 207, 34 N.E.2d 143, 144; Vol. 12 Words and Phrases, page 213 et seq. We so regard it here.
The expression 'nearest [of] kin' is generally regarded as tantamount to 'next of kin.' 57 Am.Jur., Wills, § 1398. With respect to the interpretation of 'next of kin' ...