Appeal from decree of Court of Common Pleas of Dauphin County, No. 40 of 1959, in case of estate of John Horvath, deceased; appeal of Mary Horvath Achter.
Elmer T. Bolla, for appellant.
Elmer E. Harter, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Jones. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the decision of this case.
John Horvath (testator) died January 8, 1959, survived by his widow and two daughters, Mary Achter (appellant) and Julia Holmes. Under his will -- dated August 31, 1956 -- testator set up a trust under which testator's widow was to receive the net income during her lifetime*fn1 and "then upon the death of [his] said wife, if she shall survive [him]," testator directed:
"I give and devise to my daughter, Mary Horvath Achter, my property No. 1622 North Second Street, Harrisburg, Pa., provided that within six months after my death or my said wife's death, whichever shall last happen, she pays to my daughter Julia Horvath, the sum of One Thousand ($1,000) Dollars in cash,
"I give and devise to my daughter, Julia Horvath, my residence property No. 2328 State Street, Harrisburg, Pa.
"All the rest of my estate or trust estate aforesaid I give and bequeath to my said daughters in equal shares."
Julia predeceased her mother, the life tenant, and was survived by her husband. The life tenant died April 29, 1969. Upon the life tenant's death, the trustee filed its final account. Appellant filed exceptions to the distribution proposed in the account which were subsequently dismissed and a final decree entered by the Orphans' Court Division of the Court of Common Pleas of Dauphin County. The instant appeal was then taken.
Appellant's first contention is that the interest given by testator to Julia was not vested but contingent upon her survival of testator's widow, the life tenant, and, therefore, since Julia predeceased the life tenant, her interest did not vest. The primary consideration in the construction and interpretation of wills is that testator's intent, if ascertainable, should prevail. E. g., Pearson Estate, 442 Pa. 172, 180, 275 A.2d 336, 339 (1971); McKinney Estate, 435 Pa. 608, 612, 258 A.2d 632, 634 (1969); Carter Estate, 435 Pa. 492, 496-7, 257 A.2d 843, 845 (1969). This intention is to be garnered, if ...