person or persons * * as the same would * * the insurance assets entered into the assessment of capital stock to this extent seems to have gone (under the intestate laws *) had she * * died * * * be admitted; but nothing appears to show thereof intestate and unmarried. Provided howpossessed that they were further considered. We have ever, that in such case, any shares * * no doubt, had those who assessed the capital that would go to any of my daughters herein stock realized that the plaintiff company herein constituted and appointed upon the same named shall vest in their trustees would be obliged to meet this additional an- trust upon which my said daughters' shares of nual tax, they would have taken into account my estate are herein * devised." Held, its probable indirect depreciatory effect, that pursuant to the last and controlling maniwhich they might well do; but although, ap-daughter died without issue, her next of kin of festation of the testator's intent, where one parently, this was not done, so far as the evi- the half blood were entitled to part of her share. dence before us indicates, no actual double [Ed. Note. For other cases, see Wills, Cent. taxation is shown. Dig. $$ 990, 991; Dec. Dig. § 472.*] 2. WILLS (§ 439*)-CONSTRUCTION-INTENT OF TESTATOR. [8] If it were, however, such taxation, within proper limitations, is not unknown to our law or beyond the power of the Legislature to impose. West Chester Gas Co. v. Chester County, 30 Pa. 232; Pittsburgh, F. W. & Chicago Ry. Co. v. Commonwealth, 66 Pa. 73, 5 Am. Rep. 344; Commonwealth v. U. S. Exp. Co., 157 Pa. 579, 27 Atl. 396; Commonwealth v. Westinghouse Airbrake Co., 151 Pa. 276, 24 Atl. 1111, 1113; Commonwealth v. Navigation Co., 162 Pa. 603, 610, 29 Atl. 664. * is clear and unequivocal, the testator's intenWhere the meaning of testamentary words tion becomes equally so, and must control in the construction of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] Appeal from Orphans' Court, Philadelphia County. Adjudication of trustee's account in the estate of James Simpson, deceased. From a decree directing distribution, the Philadelphia Trust, Safe Deposit & Insurance Company, trustee for Josephine S. Lentz, Virginia A. Hill, Priscilla T. Lippincott, Elizabeth C. Simpson, and others appeal. firmed. Af Exceptions were filed to the adjudication by the Philadelphia Trust, Safe Deposit & Insurance Company, trustee, and by Priscilla T. Lippincott, which exceptions were dismissed and the account confirmed. assigned was in dismissing exceptions to the adjudication and confirming the account. Error It would serve no useful purpose to review the various cases concerning past efforts to tax the securities in this fund; some of them we have had occasion to refer to in the course of this opinion, but none of them controls here, for they all arose prior to the act of 1911. We conclude that the act now before us creates a new and valid classification for purposes of taxation, and that the plaintiff company is within the class; further that the act violates neither the Constitution of Pennsylvania nor that of the United States. We have endeavored to discuss all points essential to a proper determination of this Argued before BROWN, MESTREZAT, appeal, but do not deem it necessary to pass ELKIN, POTTER, and MOSCHZISKER, JJ. specifically upon each of the 51 assignJohn G. Johnson and Maurice Bower Saul, ments of error; the last of these, which both of Philadelphia, for appellant Philadelgoes to the decree, is sustained; the remain-phia Trust, Safe Deposit & Ins. Co. Henry ing ones are not in proper form (Prenatt v. Messenger Printing Co., 241 Pa. 267, 270, 88 Atl. 439), and they are dismissed. The decree is reversed, and the injunction dissolved; the plaintiff to pay the costs. (245 Pa. 244) In re SIMPSON'S ESTATE. Spalding and Alfred Moore, both of Philadelphia, for appellants Lentz and others. Walter Biddle Saul, of Philadelphia, for appellee Heineman. James Arthur Ewing, of Philadelphia, for appellees Ewing and others. Franklin E. Barr, of Philadelphia, for appellees Simpson and another. BROWN, J. [1] James Simpson, who had Appeal of PHILADELPHIA TRUST, SAFE been married twice, died October 29, 1886. By his first marriage he had two children, (Supreme Court of Pennsylvania. May 4, 1914.) Arthur and Adam, both of whom died, leav DEPOSIT & INS. CO. 1. WILLS (§ 472*)-CONSTRUCTION. A testator who had been twice married and died leaving seven children by his second wife, and the children of two deceased children by his first wife, bequeathed $200 to the latter grandchildren, and made "no other gift or bequest to them," and in the next clause of the will divided the residue of his estate into seven parts, of which he gave absolutely five to trustees for his daughters, after the daughter's death the "capital" to be divided among her living children and the issue of any deceased child, and in the case of any daughter dying without issue surviving, "then the estate * * devised in trust for her for life shall go * to such ing children, before he made his will. By his second marriage he had seven children, two sons and five daughters, all living at the time of his death. After some minor bequests and devises and a direction as to the use to be made of his residence, the testator provided as follows by the seventh clause of his will: "Inasmuch as I consider that the families of my deceased sons, Arthur and Adam are abundantly and sufficiently provided for now in order in my judgment to make a fair and equal division of my estate (considering the opportunities *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and advantages which I gave to my said sons Arthur and Adam) I give and bequeath the sum of one hundred dollars ($100) to the two children of my said son Adam to be equally divided between them share and share alike and make no other gift or bequest to them. And I give and bequeath the sum of one hundred dollars ($100) unto the said children of my said deceased son Arthur S. Simpson to be equally divided between them share and share alike and make no other gift or bequest to them." By the next clause the testator disposed of his entire residuary estate, dividing it into seven equal parts, two of which he gave absolutely to his two surviving sons James and Charles. He gave the remaining five parts or shares to trustees for his five daughters, one of whom, Mary B. Castleberry, died June 27, 1913, without leaving issue surviving. The following condition annexed to the bequest of the one-seventh of the testator's residuary estate in trust for her is annexed to the bequest to each of the other four daughters: "And from and immediately after the decease of my said daughter then in trust to assign transfer pay over divide and distribute all the capital of the said seventh part or share (so given and devised in trust for her for life) to and among the child or children of the said Mary living at her death and the issue of any of her children who may then be deceased their several and respective heirs executors, administrators and assigns in equal parts and shares but so that any issue of such deceased child or children shall only have and take the same share which his her or their deceased parent would have taken if living. And in case of the decease of my said daughter Mary without leaving a child or children or the issue of any deceased child or children her surviving then the estate real and personal given and devised in trust for her for life shall go and I hereby give and devise the same to such person or persons and for such estates and shares therein to whom and as the same would have gone (under the intestate laws of this commonwealth) had she my said daughter Mary died seised and possesed thereof intestate and unmarried. Provided however that in such case any shares or proportions thereof that would go to any of my daughters herein named shall go to and vest in their trustees herein constituted and appointed upon the same trusts upon which my said daughters' shares of my estate are herein given and devised." "In case of the decease of my said daughter Mary without leaving a child or children or the issue of any deceased child or children her surviving then the estate real and personal given and devised in trust for her for life shall go and I hereby give and devise the same to such person or persons and for such estates and shares therein to whom and as the same would have gone (under the intestate laws of this commonwealth) had she my said daughter Mary died seised and possessed thereof intestate and unmarried." The court below sustained the claim of the descendants 2 the two half-brothers, and from its decree, awarding the fund in the hands of the accountant to those who would have been entitled to it under the intestate laws if Mary B. Castleberry had died seised and possessed thereof, intestate, and unmarried, we have this appeal. [2] When the estate of the testator was distributed among those to whom he directed it to go in the first instance, the children of his two deceased sons were entitled to but $200, for he had so provided, and his reason for directing that they should receive no more upon his death appears in the nominal bequests to them. If there were nothing in the subsequent clauses of the will indicating an intention that, upon a certain contingency, these grandchildren should further participate in the distribution of the testator's estate, the clause upon which the appellant relies would exclude them from the distribution of the fund in the hands of the accountant. What does the testator clearly and unequivocally say shall become of the seventh part of his residuary estate, to be held in trust for his daughter Mary, if she should die without leaving a child or issue surviving? If she should so die, the testator himself gives and bequeaths that part or share to those to whom it would have gone under the intestate laws of this commonwealth had the daughter died seised and possessed thereof, intestate and unmarried. If the daughter Mary had died seised and possessed in her own right of the fund before the court below for distribution, the appellees, descendants of her At the adjudication of the account of the brothers of the half blood, would have partestamentary trustee of the fund bequeathed ticipated equally with her brothers and sisfor the use of Mary B. Castleberry, the bal- ters of the whole blood, and the expressed ance in its hands was claimed by those who intention of the testator must control in this were of her whole blood, to the exclusion of as in all cases. The words which he used the children and grandchildren of her de- to express his intention as to what should ceased half-brothers, Arthur and Adam. be done upon the death of his daughter This claim was based upon the seventh clause Mary, without leaving issue, with that porof the testator's will, in which, after giving tion of his estate held in trust for her, can $100 to the children of each of his deceased have but one meaning, and that meaning sons, he says he makes no other gift or be- must be given to them. The question in exquest to them. It is contended that this ex- pounding a will is always, What do the cludes them from any participation in the words of the testator mean? Hancock's Apfund which was held in trust for the deceas- peal, 112 Pa. 532, 5 Atl. 56. With the meaned daughter. On the other hand, the children ing of testamentary words clear and unand grandchildren of the two deceased half- equivocal, the intention of the testator bebrothers of the deceased cestui que trust comes equally so and is always prevailing. claim two shares of the fund under the fol- All this is conceded by learned counsel for lowing clause in the bequest for her use and appellants, but it is insisted that a controlbenefit: ling intention of the testator, as expressed in the seventh clause of his will, runs all of those heirs. Upon the death of the sisthrough it, excluding the appellees, children ter, in distributing the estate which had and grandchildren of the two deceased sons, been left to her for life, Stickle's claim to a Arthur and Adam, from any participation portion of it, as one of the nearest heirs of in his estate in addition to the bequests of the testator, was resisted, on the ground $200. In support of this it is urged that that, by the $1 legacy given him, the testhe testator's equal distribution of his es- tator intended he should have no more out tate will be defeated if the decree of the of his estate. The court below held that he court below is sustained. This assumes- was entitled only to the $1 legacy. In reand, indeed, it is so argued here that the versing this and holding that he was entiequality which he had in mind can be main- tled to participate equally with the other tained only by construing his whole will as nearest heirs, Mr. Chief Justice Lewis used meaning that the entire residuary estate the following language, which is peculiarly belongs exclusively, and without regard to appropriate in construing the will now be any contingency contemplated by the tes- fore us: tator, to the children by his second mar- "Where there are two clauses in a will which riage. He undoubtedly intended equality in are so inconsistent with each other that it is the distribution of his estate, but the con- impossible to give effect to both, the first must give way to the last, because the latest manistruction which we are asked to put upon festation of the will of the testator is to control. his will might lead to an inequality which, But in the construction of a written instrument, it may be safely assumed, he never con- it is the duty of the court to endeavor to give templated. One of his daughters has al-effect to every part of it. It is only when this is impossible that the rule first mentioned has ready died without leaving issue; the other place. With this principle in view, we see no four may leave no issue; one of the two difficulty in the case before us. The legacy of sons by the second marriage is dead, and $1 is payable immediately and absolutely. The apparently left no issue; upon the death of sion until after the death of the tenant for life. residuary legacy does not take effect in posseseach of the other four daughters leaving no The enjoyment of the first by the legatee deissue, the entire residuary estate, under the pended upon his being alive at the death of the contention of appellant, would ultimately legatee rests on the contingency of his surviving testator. The enjoyment of the other by the pass to the issue of one of the sons by the the tenant for life. They are not so inconsistent second marriage. It may be that, to avoid with each other as to require either to give way. a contingency of inequality in the ultimate Both may well take effect. It may be possible distribution of his estate, the testator di- that the legacy of $1 to Peter Stickle was given under the erroneous notion that it would cut rected that, upon the death of any daughter him out of all further share in the estate. But without leaving issue, the share of his estate the bequest can have no such effect; whereas held in trust for her should be distributed here, the testator, in a subsequent clause, gives under the intestate laws as if it had be- cludes the first legatee. He is one of the 'neara residuary legacy to a class which clearly inlonged absolutely to her, an unmarried est heirs' of the testator, and by that descripwoman. But it is entirely immaterial what tion he must come in equally with the other rehis purpose was in making such provision If an heir is not to be disinherited except by siduary legatees named in the auditor's report. in disposing of what continued to be a part express direction, of his estate, for he had a right to say just where his whole estate, or any portion of it, should ultimately go, and the court below has but given effect to his clearly expressed intention. If he had intended to exclude the children and grandchildren of his two sons by his first marriage from the present distribution, he could have easily so provided, as he did in excluding the husband of a deceased daughter, dying without issue, from participation in the distribution of the share of his estate held in trust for her. The court below relied upon certain authorities in support of its decree allowing the claims of the appellees to two distributive shares of the fund in the hands of the accountant. As the decree of distribution is the one made by the testator himself, authorities were hardly needed to vindicate it, and we shall refer to only one of those cited by the lower court. In Stickle's Appeal, 29 Pa. 234, the testator, after bequeathing to Peter Stickle $1, in addition to what he had already given him, gave all the residue of his property to his sister for life, and at her death the same was to be equally divided among his "nearest heirs." Stickle was one necessary implication, he surely cannot be deprived of his legacy, expressly given, by an implication not necessarily arising from any part of the will, and which, at most, is but a bare suspicion. The testator may have intended to cut him off with $1, but he has expressed a contrary intention." The latest manifestation of the intention of James Simpson, as found in his will, and which is therefore controlling, is that upon the death of his daughter, the share of his estate which had been held in trust for her should go to those who would be entitled to it under the intestate laws if she had died unmarried, intestate, and seised thereof. This expressly includes the appellees, and no line of reasoning based upon the seventh and earlier clause of the will can possibly exclude them. Sullivan v. Straus, 161 Pa. 145, 28 Atl. 1020, McGovran's Estate, 190 Pa. 375, 42 Atl. 705, Everitt's Estate, 195 Pa. 450, 46 Atl. 1, and Tucker's Estate, 209 Pa. 521, 58 Atl. 889, are four of the five cases relied upon as authorities in support of this appeal, but they are not to be so regarded, for the testator or testatrix in each case, in plain words, unmistakably excluded from any participation in his or her estate the parties claiming dis tributive shares of the same. ifest from a mere glance at each of the wills. One of the members of the court below, in dissenting from the decree concurred in by all of his colleagues, was of opinion that Herr's Estate, 28 Pa. 467, is "practically the present case," and this view has been pressed upon us by learned counsel for appellant, but we cannot adopt it. John Herr, the testator, left surviving him six children and two grandsons, children of a daughter who was deceased at the time his will was executed. For these grandsons he made the following provision: This is man- | future death of Mrs. Eshelman, whom he had al- "I give and bequeath unto my two grandsons, Benjamin Eshelman and John Eshelman (being the children of my daughter Anna, deceased), one thousand dollars, lawful money of Pennsylvania; that is to say, I give five hundred dollars to each of them, their heirs and assigns for ever, and the same to be their share or shares in full coming to them out of my estate, both real and personal, and to be paid unto them as they severally arrive at the age of twenty-one years.' By a subsequent clause a fund was given to a trustee for the support and maintenance of an imbecile daughter, with a direction that, upon her death, any unexpended balance in the hands of the trustee should be equally divided among the children of the testator and the legal representatives of any that might be dead. In holding that this provision did not include the two grandsons, children of the daughter Anna, who was dead when her father made his will, we said: "Looking through the will, it is observable that the testator provides specifically for his wife, his two grandsons then living, and for his sons' John and Henry; and then directs that the residue of his estate, including also the sums charged on lands given to the sons, shall be divided into six equal shares among his six children, whom he names. Mrs. Eshelman is not named among his children, because he had in a previous clause taken notice of her death. In an after clause of the will he recites the imbecility of Barbara, and appoints a trustee for her share, and then orders that after her death so much of her share as may remain unexpended shall go to all my children, or if any of them be dead, to their legal representatives share and share alike.' "It is argued that this language was intended to comprehend Mrs. Eshelman, and that her surviving son is thereby admitted to the bequest; but, after an attentive consideration of all that has been urged both by the auditor and by counsel in support of this view, we are unable to adopt it for these two reasons: "1. The testator, in providing specifically for his grandsons, declared that the $1,000 given to them was to be 'their share or shares in full coming to them out of my estate both real and personal.' He looked to no further provision for them in any contingency which might befall his family. That he meant this bequest to be their full share of his estate is so incontestably proved by his words that any construction which would give them more would derange the scheme of distribution he had in mind, and substitute another will for that which was written. Nothing in the foregoing words has any application in construing the will now before us. In the will that was then construed the testator declared that the provision he had made for his two grandsons was to be "their share or shares in full coming to them out of my estate, both real and personal." No such words are found in the will of James Simpson, and when John Herr subsequently declared who were to take any unexpended balance in the hands of the trustee upon the death of the incompetent daughter, he intended by the word "children," as Mr. Justended by the word "children," as Mr. Justice Woodward plainly showed, his children living at the time of his death. More has been said than was needed to sustain the decree of the court below, which is affirmed at appellant's costs. (245 Pa. 318) In re MELVILLE'S ESTATE. Appeal of STERN et al. (Supreme Court of Pennsylvania. May 11, 1914.) 1. WILLS (§ 184*)-FAILURE OF REVOKING INSTRUMENT-RESIDUARY BEQUESTS. Where testator by codicil declared the revocation of the residuary bequest made in his will to the executors, such revocation was effective, though he declared that it was made to carry out a provision of the codicil creating a charity, and such charity failed because of his death within 30 days. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 462-467; Dec. Dig. § 184.*]· 2. WILLS (§ 184*)-FAILURE OF REVOKING INSTRUMENT-RESIDUARY BEQUESTS. Where the failure of the dispositive part of a revoking instrument is due to a defect in the instrument, the revocation is inoperative, but, where such failure occurs because of extrinsic circumstances the revocation will prevail. "2. The hypothetical words quoted above, if they or any of them be dead,' must haye referred to the children whom he enumerated as living when he made his will, because the event on which they were to succeed to Barbara's share, was future-her death. It seems absurd to make the testator speak hypothetically of the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 462-467; Dec. Dig. § 184.*] Appeal from Orphans' Court, Philadelphia | Annuities, the income to be expended in County. purchasing annually for aged and deserving In the matter of the estate of George W. poor entrance into desirable homes estabMelville, deceased. From a decree sustain-lished for such purposes. The codicil coning exceptions to adjudication, Max J. Stern and another appeal. Affirmed. Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. John G. Johnson, John M. Campbell, and Maurice Bower Saul, all of Philadelphia, for appellants. William W. Porter and James A. Walker, both of Philadelphia, for appellees. cludes: "In order to carry out the provisions of this codicil, clause No. 29 of my will dated July 5, 1910, is hereby abrogated. The clause referred to relates to the appointment of Max J. Stern and Lieut. Walter M. McFarland as the fund thus established is to be chartered, if necresiduary legatees of my original will. essary, in the state of Pennsylvania and is always to be designated 'Estella Polis Melville Charity.' 999 The The testator died 17th March, 1912, within 30 days after the execution of the codicil, and the charity contemplated in the codicil STEWART, J. [1] We have here two appeals involving precisely the same question. The several appellants are the persons named in the following clause, indicated as the twen- therefore failed. The will and codicils were ty-ninth, appearing in the last will of Admiral George W. Melville, deceased, bearing date 5th July, 1910, and duly probated: later proven, and letters testamentary on the estate were granted to these appellants. The question which now concerns us arises "I do hereby appoint Dr. Max J. Stern, M. on the adjudication of the account of the D., of Philadelphia, and Walter M. McFarland, executors, and, as stated by appellants, it of New York, ex-officer of the navy, and at pres- is whether the revocation contained in the ent writing in the employ of the Babcock & Wilson Boiler Company, of New York, cojoint- codicil of the twenty-ninth clause in the will ly to be the executors of this my last will and appointing appellants residuary legatees was testament to act without bond, and they to be conditional or absolute. The orphans' court equally my residuary legatees in all things re-in banc hold the revocation absolute, and, the lating to this my last will and testament.' 99 The will contained numerous devises and specific and pecuniary legacies, among others devises and legacies very considerable in value and amount to his two surviving daughters and their respective their respective children. While it was testator's expectation that his estate would be adequate to the payment of all these legacies he so expresses himself in the twenty-first clause of the will-it is evident that it was a matter about which he was more or less uncertain, since in the twenty-seventh clause he directs that: "If it be found from any clause that the amount of my bonds, mortgages, and other belongings will not cover the monetary bequests I have made in this my last will and testament, that monetary legacies or bequests be scaled down in amounts from $10,000, such amounts as will cover all other legacies; the amount in no case to be reduced below $5,000." The legacies so to be scaled down were the legacies to his sisters and their respective children. The fact referred to is without consequence, except as it affords some measure of the testator's intended beneficence in making the appellants his residuary legatees. To this last will testator made four separate codicils, none of which call for special reference here, excepting the last, which is dated 22d February, 1912, and gives rise to the present controversy. This codicil proceeds: "Having had an expert accountant assist me in making an inventory of my estate and finding that after all the bequests contained in my will and several codicils there may remain about $150,000 of my undistributed estate, and being desirous of using the residuary estate in some manner that will alleviate the sufferings of the indigent, deserving and aged poor, I desire the estate to be used for such purpose." charity having failed, awarded the residuary estate to the daughters of the testator as his sole heirs and next of kin. The contention of appellants is that the revocation was conditional, depending upon the efficiency and sufficiency of the charitable bequest, and that, the charitable bequest failing, the purpose of the revocation being thereby defeated, the residuary clause in the will remained unre voked. Whether we seek to resolve the question by ascertaining from the will and codicil the intention of the testator, or by applying settled rules of law, the result must be the same. The testator made the codicil because subsequent to the making of his will he had ascertained that his estate was $150,000 in excess of what he had supposed. He indicates in his will too clearly to admit of question that in making appellants residuary legatees his thought was that the residuary estate would, at most, be inconsiderable. He was by no means certain that his estate would be adequate for the payment of his pecuniary bequests, and therefore provided for their abatement in case of a deficiency. What induced the making of the codicil was his discovery that, except as his will was changed, $150,000 of his estate would pass to these appellants under the residuary clause, whereas up to that time he had rested in the belief that whatever amount, if any, would pass under the residuary clause would be an inconsiderable part. So much we may safely conclude from what appears in the will and codicil. The substitution of another by the codicil to succeed to this A devise and bequest of the entire residu- enlarged residuum was equivalent to a posiary estate follows to the Pennsylvania Com- tive expression that those appointed by the pany for Insurance on Lives and Granting will to take should be excluded because of his |