Appeal, No. 300, Jan. T., 1953, from decree of Orphans' Court of Philadelphia County, Oct. T., 1917, No. 38, in Estate of Mary B. K. Wainwright, deceased. Decree affirmed.
Thomas Raeburn White, with him W. Wilson White and White, Williams & Scott, for appellants.
Clarence E. Hall, with him T. F. Dixon Wainwright, and Hall, Hamilton, Wainwright & Welsh, for certain appellees.
Ernest Scott, with him John Grier Bartol, Jr., and Pepper, Bodine, Stokes & Hamilton, for an appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This appeal involves the construction of a will. The question is whether the share of a child who died without issue passes under the intestate law or to the issue of his deceased brother.
Mary B. K. Wainwright, the testatrix, by her will, erected a trust of her residuary estate whereunder her two sons, Francis King Wainwright and Clement R. Wainwright, Jr. were each given a life estate. The remainders were disposed of as follows: "... And if either of my said sons should die in the lifetime of the other without leaving lawful issue then I direct that his share shall be held in trust... for my surviving son during his life; and after the death of my said surviving son I give devise and bequeath the whole of the said residuary estate... to his lawful issue absolutely share and share alike. In case both of my said
sons should die leaving lawful issue, then I give, devise and bequeath the share hereby given to each of my sons for life to their respective issue absolutely, the issue of each son taking the share of their father in this estate, and in case both of my said sons should die without leaving lawful issue, then I give, devise and bequeath the whole of my residuary estate... to the Hospital of the Protestant Episcopal Church in the City of Philadelphia..." Clement R. Wainwright, Jr., one of the sons, died in 1932 survived by six children to whom a one half share of the corpus was distributed. Francis King Wainwright died in 1952 without leaving issue. At the audit of the substituted trustee's account, the remaining one half share of corpus was awarded to the children of Clement r. w/ainwright, Jr. The executors of the estate of Francis King Wainwright have appealed, contending an intestacy existed as to this share.
The basis for appellants' contention of the existence of an intestacy is that testatrix failed to provide for the contingency which actually occurred. It is urged that she contemplated and provided for a situation where both sons died with issue; where both died without issue, but failed to provide for a situation (which actually occurred) where one son died with issue and the other died without issue.
We are therefore confronted with this problem: in construing this will was the deficiency supplied by the court or under the words of the ...