Appeal, No. 91, Jan. T., 1952, from decree of Orphans' Court of Philadelphia County, Oct. T., 1926, No. 3572, in Estate of Josiah G. Rouse, deceased. Decree affirmed.
Thomas B. K. Ringe, with him Richard P. Brown, Jr., Carl H. Anderson, George C. Klauder and Morgan, Lewis & Bockius, for appellant.
Henry S. Drinker, with him Anna Frank Dawson, John A. Ballard and J. Horace Churchman, for appellees.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This appeal relates to a will construction. The question is whether there is an implied gift of corpus to testator's two minor great-grandchildren or whether there is a partial intestacy. Appellant is the widow of testator's grandson (claiming as executrix under the will of her husband, the grandson, and in her individual right), and appellees are the testamentary guardians of her two minor children. The Orphans' Court of Philadelphia County decreed that the corpus amounting to $1,222,123.53 passed to the minor children. The appeal followed.
Josiah G. Rouse, testator, died February 21, 1926. His will, which was duly probated, is dated June 2, 1903. At his death his grandson, Josiah Rouse Burns, was his sole heir.
By the will testator placed the residue of his estate in trust. The dispositive provisions relating to his
residuary estate are contained in the sixth item, which he divided into four numbered clauses. The first clause relates to the care of the cemetery lot, while the second has to do with the maintenance of the family home during the widow's life, neither or which affect the present appeal.
The objects of testator's bounty as specified in clauses three and four are: his wife, Sabra G. Rouse; his wife's sister, Julia Swanton; his grandson, Josiah Rouse Burns; his grandson's "child or children or issue of deceased child or children" (hereafter termed issue) and the Grand Lodge of Free and Accepted Masons of the Jurisdiction of Pennsylvania (hereafter termed Masonic Lodge).
The testamentary scheme, for the present purpose, may be summarized as follows: the trustees were directed to divide the net income into eight equal parts; his wife Sabra was given the income from six of the eight shares for life; the sister-in-law Julia was given the income from one of the eight shares for her life; and the remaining eighth share of income was given to the grandson, Josiah Rouse Burns, for his life. Testator contemplated and provided against the deaths of his wife, his sister-in-law and grandson in their various lifetimes, as well as the death of the grandson with and without leaving issue. We need not recite in detail these elaborate testamentary provisions. Testator's wife and sister-in-law predeceased him. The grandson survived and received the entire net income until his decease on September 19, ...