Appeal, No. 403, Jan. T., 1962, from decree of Orphans' Court of Philadelphia County, July T., 1960, No. 199, in re estate of Charlemagne Tower, deceased. Decree affirmed; reargument refused April 22, 1963.
Lewis H. Van Dusen, Jr., with him Cuthbert H. Latta, Thomas Reath, and Drinker, Biddle & Reath, for appellants.
William H. S. Wells, with him Thomas S. Weary, John R. Suria, and Saul, Ewing, Remick & Saul, for appellees.
Philip Klein, guardian and trustee ad litem, in propria persona, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
Charlemagne Tower (testator), a resident of Philadelphia, died on July 24, 1889. Under the pertinent terms of his will, dated May 21, 1889, he provided, inter alia:
"Item 4. I have living at the date of this my Will ten lineal descendants: that is to say, five children and five grandchildren. [He then named the five children and five grandchildren.]
"Item 5. All the rest, residue and remainder of all my Property and Estate whatsoever and wheresoever,
Real, Personal or Mixed, I give devise and bequeath unto ... [trustees, in trust for my wife and children] ... At and after the decease of each of my said five children, severally and successively, his or her share of the income from by Residuary Estate, as above designated shall be appropriated and divided among the children and issue of deceased children and issue of deceased children of each one of my children as he or she may successively die, in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent, and in like manner the share of income which may accrue to any of grandchildren or more remote lineal descendants under this my Will and who may die before the period appointed for the distribution of the principal of my residuary estate shall in like manner accrue to their children and issue of deceased children as above provided, and such payment or application of the income of a deceased child's or grandchild's share among his or her children and issue shall continue until the arrival of the period for division of the capital of my Residuary Estate, and if any one or more of my children or grandchildren shall die without leaving any issue to survive him or her, then the share of income theretofore appointed and payable to such decedent shall go to the other of my children or grandchildren, (as the case may be), then living and the issue of any others of my said children or grandchildren who may then be deceased, in the same way and manner in all respects as are limited and provided in respect to their original shares which shall simply be augmented thereby but in all respects governed by the same provisions as applied to their original shares, PROVIDED always, however, that I authorize and empower each one of my children or grandchildren who may leave a husband or wife surviving him or her, by his or her Last Will and Testament, or any writing in
the nature thereof by him or her signed, to make provision for any surviving husband or wife either of them may leave surviving, to continue during life but not to exceed one-fourth of the income which would have been payable to such testator or appointer if he or she had remained living. ... I direct the division of all the capital of my Residuary Estate among all my lineal descendants then living, to each ...