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In Re Estate of Charles E. Groninger, Late of Harrisburg, Deceased

It is claimed in the petition for the citation that as Charles Elliot Groninger deceased, died before the widow of Stewart Groninger, he took no interest under his father's will, and that as the petitioner, Edna Groninger Kochenour, the daughter, was the only child living at the time of the death. of the widow, she became the sole owner of the property in question. The will of Stewart Groninger, deceased, reads as follows:

"As to my worldly estate and all property, real, personal and mixed of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to-wit: First: My will is that all my just debts and expenses shall by my Executor hereinafter named be paid out of my estate as soon after my decease as shall be found convenient. I give, devise and bequeath to my beloved wife, Rosa A. Groninger, as long as she lives; at her death the estate shall be divided equally between my children if any living, if none, to my nearest heirs all my property, real, personal and mixed whatsoever and wheresoever at the time of my death including B. of L. E. insurance." Thus by his will, the testator devised his estate, real and personal to his wife for life and directed that at her death it should be divided equally between his children if any living, if none, to his nearest heirs. The question arises on the construction of the will, whether the devise and bequest to the children was vested or contingent. It is well settled that a devise or bequest is to be deemed vested unless it indisputably appears from the provisions of the will that the testator intended the contrary. Carstensen's Estate, 196 Pa. 325, that whenever it is possible to do so by a fair reading of the will, the estate therein given will be held to be vested rather than contingent, particularly so when the gift is to remaindermen, who are children of the testator and in esse, and that where the remainder is to a class which can be determined at the death of the testator, such as to the children of the testator, the estate vests at the time of the testator's death. Rau's Estate, 254 Pa. 464 (472). The doctrine on the subject is thus further stated: "Where the right to future enjoyment is fixed, that is to say that whenever there is a person in being who would have immediate right to possession upon the ceasing of the precedent estate, the remainder is vested. "Where the remainder is so limited as to take effect in possession if ever immediately upon the determination of a particular estate, which estate is determined by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the re

In Re Estate of Charles E. Groninger, Late of Harrisburg, Deceased mainderman is in esse and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession." "It is not the uncertainty of ever taking effect in possession that makes a remainder contingent for to that every remainder for life or intail is and must be liable as the remainderman may die or die without issue before the death of the tenant for life. The present capacity of taking possession if possession were to become vacant and not the certainty that the possession will become vacant before the estate limited in remainder determines universally distinguishes a vested from one that is contingent." Segar vs Galloway, 113 Pa. 500; McCauley's Estate, 257 Pa. 377; Neel's Estate, 252 Pa. 394; Fearne on Remainders, p. 149.

We are not convinced that there is anything in this will that shows an intention to postpone the vesting of the devise to the children until the termination of the life estate of the widow. The testator's direction, that at his wife's death the property should be divided between his children, only fixed the period of the termination of the possession or enjoyment of the life interest given to the widow and denoted the time when the remainder to the children should vest in possession. The whole estate vested at the testator's death. The right to possess and enjoy it remained to the widow during her life and at her death that of the children began. Jarman on Wills, p. 773, 6th Amer. Ed.; Womrath vs McCormick, 51 Pa. 504; Rau's Estate, 254 Pa. 464 (468). But it is contended that the words "if any living, if none to my nearest heirs" indicate an intention to postpone the vesting of the devise to the children. Under all the authorities these words are to be referred to the death of the testator and not to the death of the life tenant unless the contrary intent clearly and undoubtedly appears in the will. Ross vs Drake, 37 Pa. 375; Johnson vs Morton, 10 Pa. 245; McCauley's Estate, 257 Pa. 377; Rau's Estate, 254 Pa. 464. If the construction contended for by the petitioner be the true one, then we must conclude that the testator intended, as was said in Minnig vs Batdorrf, 5 Pa. 503, to exclude from participating in his estate the off-spring of any of his children who might happen to die pending the particular estate, an intent not to be imputed to a testator unless it be undoubtedly manifested. It is difficult, if not impossible, as has been frequently said, to reconcile the decisions on the question of whether the word "living" or "surviving" used in a will refers to the death of the testator or the death of the life tenant, but we cannot bring ourselves to believe that in the present case the words

In Re Estate of Charles E. Groninger, Late of Harrisburg, Deceased "if any living, if not" upon which the petitioner relies, so clearly refer to the death of the life tenant as to warrant a construction which would vest the whole title to the property in that one of his children who might survive the death of the widow, to the exclusion of his possible grand-children by the other; and yet such would be the case under the construction proposed, if Charles Elliot Groninger had left issue, instead of a widow only. Of course, in every case the intention of the testator as gathered from the whole will must prevail, but if it is left in doubt the rule that the death of the testator is meant is to be applied. Woellper's Appeal, 126 Pa. 562; McCauley's Estate, 257 Pa. 377.

The cases relied upon by the petitioner in support of her view belonging to a different class from the present one. In them there was found in the language of the wills then before the Court, the testator's intention to postpone the vesting of the interests given. Here no such intention, as we have said, appears

The estate is given to the widow for life and at her death to the testator's children. It is given to the children as a class. Both were living at the testator's death and the rule is that where real estate is devised to a widow for life and to the testator's children at her death, all who fall within the class at the time of the testator's death take an interest. The respondent's husband was living at the time of his father's death and hence fell within the class named. That being the case his devise or interest was a vested one with the right to the possession and enjoyment of it suspended till the life tenancy terminated. It became a part of his estate by virtue of the will, and when he died, his widow, the respondent, was entitled to receive her widow's exemption out of it.

It is suggested that as there was merely a direction in the will to divide the estate between the children and no gift to them independent of such direction, their interest is contingent. This would be true if it did not appear that the postponement of the possession or enjoyment of the devise was made by the testator for some definite purpose. But it is manifest that his object in postponing the possession or enjoyment of it was to let in the life interest of the widow. The rule appealed to therefore does not apply. Marshall's Estate, 262 Pa. 145.

We are of the opinion that the devise to the testator's children was a vested one; that the undivided one-half interest in the real estate in question was vested in Charles Elliot Groninger, the respondent's deceased husband at the time of his

The Borough of Middletown vs Adam Baumbach

death, and that as his widow she was entitled to take it under her widow's claim on the death of the mother, the life tenant.

Wherefore the citation awarded is dismissed at the cost of the petitioner.

The Borough of Middletown vs. Adam Baumbach. Boroughs--Ordinances-Act of May 8, 1907-Act of May 14, 1915. The erection, in a designated fire district in a borough, of a wooden structure having a floor space exceeding 75 square feet, the outside of which structure is to be covered with incombustible material threesixteenths of an inch in thickness, is a violation of a borough ordinance which prohibits the erection of any frame or wooden building covering a floor space of 75 square feet, the walls of which are not constructed of stone, brick, iron or other hard incombustible material, within the designated fire district.

A borough ordinance enacted under the authority of the Act of May 8, 1907, P. L. 184, is not invalidated by the repeal of the Act under which it was enacted, by the general borough act of 1915, P. L. 314.

Section 3 of the General Borough Act of 1915, is a saving section whose purpose is to save and continue in force borough ordinances which had been passed pursuant to acts of assembly repealed by the General Borough Act. The language of the Section is broad enough to include boroughs that come under the General Borough Act, and also those that do not.

Bill in equity. C. P. Dauphin County, No. 632, Equity Docket.

John R. Geyer, for plaintiff.

Wickersham & Metzger, for defendant.

Kunkel, P. J., July 26, 1919.

On the hearing of the motion to continue the preliminary injunction counsel agreed that the case should be disposed of as upon final hearing on the evidence then taken. No answer has been filed to the bill nor has there been any request by either of the parties for specific findings of fact.

The bill complains that the defendant is in the act of erecting a building in the Borough of Middletown, in violation of the borough ordinance approved April 15, 1910, and prays that a permanent injunction be awarded to restrain him from erecting the proposed building and to require him to take down and remove so much of it as has already been erected.

The ordinance referred to prohibits the erection, within the first fire district of the borough which is therein bounded

The Borough of Middletown vs Adam Baumbach and defined, of any frame or wooden building covering a floor space exceeding 75 square feet, the walls of which are not constructed of stone, brick, iron or other hard incombustible material, and provides also that no wall, structure, building, or part theeof shall thereafter be built or constructed within the district except in conformity with the provisions of the ordinance. From the evidence submitted it appeared that the building, which is the subject of this complaint, is to be a frame or wooden structure having a floor space exceeding 75 square feet and is being erected within the prohibited district. This building, the defendant intends to cover on the outside with a hard incombustible material or composition 3-16 of an inch in thickness. Such a building can hardly be said to be constructed in conformity with the requirements of the ordinance. Its walls are not constructed of incombustible material but consist of wood which is to be covered by an incombustible material. Covering the walls of a building with incombustible material is quite different from constructing them of such material; if it were not so, any frame or wooden building might be erected within the fire district of the borough and if covered with tin, sheet iron or other hard metal the ordinance would be evaded. We are of the opinion that the building in question falls within the prohibition of the borough ordinance.

Further, the defendant contends that the ordinance has been invalidated by the repeal of the Act of Assembly by authority of which it was enacted. The ordinance was drawn under the Act of May 8, 1907, P. L. 184. That Act was repealed by the General Borough Act of 1915, P. L. 314. It is urged that the repeal of the Act of 1907 resulted in the repeal of all ordinances enacted under it. Whether the effect of the repeal of an Act of Assembly by virtue of which an ordinance has been passed, is to repeal the ordinance is a question of legislative intention. We are not left in doubt, in the present case, as to the intended effect of the Act of 1915 upon ordinances enacted under the authority of the legislation which has been repealed. Section 3, of Chapter 1, Article I of that Act declares what the effect shall be. Among other things it provides that "all ordinances, regulations and rules made pursuant to any Act of Assembly repealed by this Act shall continue with. the same force and effect as if such act had not been repealed." Here is a direct declaration, the purpose of which it is manifest, was to save and continue in force borough ordinances which had been passed pursuant to Acts of Assembly repealed by the General Borough Act.

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