Appeals, Nos. 127 and 171, Jan. T., 1953, from decree of Orphans' Court of Philadelphia County, July T., 1924, No. 2526, in Estate of Henry R. Edmunds, deceased. Decree affirmed.
Stanley L. Thornton, with him C. Gilpin Gibbon and Witney & Thornton, for Girard Trust Corn Exchange Bank, appellant.
John W. Dawson, Jr., for John Shahedy, appellant.
Grover C. Ladner, with him Frank W. Melvin, Owen Biddle, Joseph J. Tunney and Clark, Ladner, Fortenbaugh & Young, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
In this will construction we are required to determine whether a gift in remainder is vested or contingent. The court below, one judge dissenting, held that the remainder was contingent.
Testator's residuary estate was placed in trust to pay the net income to three named children for life and upon the death of each named child: "to convey, transfer, assign and pay over the principal of one-third of my residuary estate to my right heirs at law under the terms of the intestate law of Pennsylvania, absolutely, clear of trusts."
The share in litigation is that of testator's daughter, Adeline E. Froriep, who died August 4, 1950, a widow, and without issue. She married Charles Neeld subsequent to testator's death, and such husband predeceased her.
It is to be initially noted that the gift in remainder is necessarily implied solely because of the testamentary direction "to convey, transfer, assign and pay over." These words constitute what is known as a "pay and divide" case. The rule has been repeatedly quoted, and is what was accurately stated by Chief Justice GIBSON in Moore v. Smith, 9 Watts 403, 407: "... where there is no separate and antecedent gift which is independent of the direction and time for payment, the legacy is contingent; and it seems to be as well founded in reason, as rules of interpretation usually are. Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be."
This rule is also stated by Josiah W. Smith, and English barrister, in his scholarly book "Executory Interests" (1845), sec. 314, p. 150: "(1) It must be carefully ...