"(2) Nancy Neel left to survive her one child, I four-fortieths. She appointed her son David W. Adella Neel, and brothers and sisters as follows: Pearson executor. Joseph K. Pearson died prior Isaiah White, Samuel H. White, Mary Pearson, to his mother's death, but after the death of and Lucinda Taylor. Nancy Neel, leaving to survive him a widow, Catherine Pearson, and four children, S. D. Pearson, Edward Pearson, Gertrude Pearson Cunningham, and Mary Pearson. David W. Pearson died July 22, 1911, leaving to survive him a widow, Ella Pearson, and one child, Cornelia Bascom. Emma Boyles died about 1904, leaving to survive her two children, David C. Boyles and Mayme Clendenin, also three grandchildren, Gula Foltz and Stewart Foltz, children of Virginia Foltz, a deceased daughter, and also Fredrica Boyles, a daughter of Frederick Boyles, a deceased son. Eva Thompson died about 1884, leaving to survive her a husband Thompson, and one son, David Thompson, who still survives, and a son, George Thompson, who died about 1893, unmarried and without issue." "(3) The executors of the will of Nancy Neei filed a final account of their administration and paid over the balance due the estate to the trustees named in the will, who continued to administer the said trust until the death of the survivor of them; whereupon Joseph R. White was duly appointed trustee to succeed them, and who has now filed his sixth partial account as such trustee, showing a balance in his hands of $98,675.21, of which the auditor finds the sum of $50,490.88 to constitute the principal or corpus of the estate originally going into the hands and possession of the trustee and the remainder $48,184.33 to constitute the increase upon the said principal derived from rents, interest, etc. "(4) Adella Neel, the daughter of Nancy Neel, the decedent, was from early childhood somewhat deficient in mental capacity. * "(5) Adella Neel died on February 19, 1912, intestate, unmarried, and without issue, aged from 65 to 68 years. "(6) Isaiah White, the brother of Nancy Neel, the decedent, died May 6, 1888, intestate, unmarried, and without issue. "(7) Samuel H. White, a brother of Nancy Neel, the decedent, died in 1892, leaving six children, Amzi White, Elizabeth Harbison, Sarah Carson, Joseph R. White, Laura Linton, and Mary J. Harbison, of whom the first three named died subsequent to the death of Nancy Neel and prior to the death of Adella Neel, while Joseph R. White has died since the death of Adella Neel. By his last will and testament duly probated Samuel H. White, after giving certain specific devises and bequests, provided as follows: "To my sons, Amzi B. White, Joseph R. White, and my daughters, Mary J. Harbison and Laura E. Linton, and to my grandchildren, Albert W. Harbison, Howard R. Harbison, Laura McCready and Effie Taggart, the children of my daughter, Elizabeth Harbison, deceased, and Wilbur Carson and Nevin Carson, children of my daughter, Sarah Carson, deceased, I devise, give and bequeath all the residue of my estate, real and personal, to be divided equally between them as follows; that is, to each of my children above named now living, the one-sixth, and the children of my deceased daughter, Elizabeth Harbison, together the one-sixth, and to the children of my deceased daughter, Sarah Carson, together one-sixth.'. He appointed James Linton and Amzi B. White executors. Amzi B. White by his last will and testament gave his entire estate, real and personal, to his wife, Mary R. White, and named her as executrix. He left to survive him in addition to his wife, four children, Norris White, Elmer T. White, Laura Shaffer, and Mayme White. Elizabeth Harbison died, leaving to survive her four children, Albert W. Harbison, Howard R. Harbison, Laura C. McCready, and Effie Taggart. Sarah Carson died leaving two children, Wilbur Carson and. Nevin Carson. "(8) Lucinda Taylor, a sister of Nancy Neel, the decedent, died in the year 1914, testate, and her estate is now represented by Mary Taylor, her executrix. "(9) Mary Pearson, a sister of Nancy Neel, the decedent, died in 1900, leaving to survive her four children, Joseph K. Pearson, David W. Pearson, Eva Thompson, and Emma Boyles, all of whom died prior to the death of Adella Neel and Mary E. McCandless, who survives. By her last will * Mary Pearson, after the giving of certain specific legacies, disposed of the residue of her estate, real, personal, and mixed, in the following proportions: To her daughter, Emeline Boyles, nine-fortieths, to the children of Joseph K. Pearson, deceased, nine-fortieths, to her son, David W. Pearson, nine-fortieths, to her daughter, Mary E. McCandless, ninefortieths, to her grandson, David P. Thompson, Conclusions of Law. version of her entire estate into personalty. "(2) At the death of Nancy Neel her brothers and sisters and the children of any brothers and sisters then deceased took a vested interest and estate in all of the corpus of such estate which passed into the hands of her trustees. fourth of the corpus of her estate became vest- "(5) The accumulations now in the hands of the trustees of the decedent pass to the administrator of the estate of Adella Neel, who was the only child and therefore the next of kin of Nancy Neel. collateral inheritance tax amounting to $4,750, "(6) It appears that the trustees have paid being the tax on $100,000, less the discount. In the foregoing calculations this tax paid has been all charged to accumulations. The auditor is of opinion that so much of said sum as would pay the tax upon the corpus should now be charged tions. The balance of the amount paid will be against that fund and credited to accumulaa credit upon such tax as may properly be found to be chargeable against the accumulations upon the final distribution of that fund." In accordance with the above findings of fact and conclusions of law, the auditor recommended the following distribution: Balance, $50,083.39, less collateral tax, $2,378.96, leaving balance for distribution of $47,704.43, divided thus: Richard F. Dana, administrator d. b. n. of Adella Neel, onesixteenth, Mary Taylor, executrix of Lucinda Taylor, deceased, five-sixteenths, Mary R. White, executrix of Amzi White, deceased, five ninety-sixths, estate of Elizabeth Harbison, deceased, five ninety-sixths, estate of Sarah Carson, deceased, five ninety-sixths, H. K. Gregory and Florence E. White, executor and executrix of Joseph R. White, deceased, five ninety-sixths, Laura Linton, five ninety-sixths, Mary J. Harbison, five ninetysixths, estate of Joseph K. Pearson, deceased, one-sixteenth, estate of D. W. Pearson, deceased, one-sixteenth, estate of Emma Boyles, deceased, one-sixteenth, Mary E. McCandless, | daughter, Adella, never married, and she one-sixteenth, estate of Eva Thompson, de- died intestate and without issue in 1912. One ceased, one-sixteenth, making a total of brother of the testatrix died intestate, unsixteen-sixteenths or $47,704.43. Accumula- married, and without issue, in 1888; another tions for distribution $48,184.33, plus collater- brother died testate, leaving children, in al tax paid out of accumulations $2,378.96; 1892; a sister of testatrix died testate, leavtotal $50,563.29, less proportion of cost of ing children, in 1900; another sister died audit $391.51, leaving balance for distribu- testate in 1914; all of which is set forth tion on this account of $50,171.78, which was more at large in the notes of the reporter, awarded to Richard F. Dana, administrator published in connection herewith, to which d. b. n. of the estate of Adella Neel, deceased. we shall refer, from time to time, during the The court dismissed the exceptions. Flor-course of this opinion. The several questions ence E. White and Harry K. Gregory, executor and executrix of Joseph R. White, deceased, Mary J. Harbison, Laura E. Linton, Mary Taylor, executrix of Lucinda Taylor, deceased, and Mary E. McCandless, appealed. Argued before BROWN, C. J., and POTTER, STEWART, MOSCHZISKER, and FRAZER, JJ. Oscar L. Jackson and Charles R. Davis, both of New Castle, for appellants Taylor and McCandless. Harry K. Gregory, of New Castle, for appellants White, Gregory, Harbi son, and Linton. Samuel S. Mehard, of Pittsburgh, and S. W. Dana and Richard F. Dana, both of New Castle, for appellee Dana. Rufus C. McKinley, J. Norman Martin, and Norman A. Martin, all of New Castle, for appellees estates of Pearson, Thompson, Harbison, and Carson. MOSCHZISKER, J. Nancy Neel devised her residuary estate in trust during the life of her only child, a daughter, with directions that the trustees should— "apply during the life of my daughter, Adella, * trustees * * The testatrix further provided as follows: "I do hereby will and bequeath all my property and estate that shall be in the charge of said at the time of the decease of the said Adella to and among the children of the said Adella, * provided that the said Adella shall leave at her decease any such children. * * And in case that the said Adella shall not leave at her decease any such child or child of such deceased child, then, and in that case, I will, devise and bequeath all my property and estate so in charge of my said trustees * at the death of Adella to and among my brothers and sisters, share and share alike, the children of any now or then deceased brother or sister to represent his or her parent and take the share he or she would take if living. And for the purpose of distributing the estate to and among whichever class shall happen then to be entitled, I do authorize and empower my said trustees, and the survivor of them, to sell any real estate then, at the death of the said Adella, remaining unsold, at private or public sale and to make deed therefor, to the purchasers thereof, and to convert all my estate into money, and to make distribution thereof as aforesaid." now before us concern the construction of Nancy Neel's will, and they arise on five separate appeals taken by various parties in interest who are dissatisfied with the final distribution of her estate decreed by the orphans' court. [1] The learned auditor appointed by the court below, after finding facts and stating conclusions of law, so ably discusses the material points involved that, throughout this opinion, we shall quote liberally from his report. In dealing with the subject of the character of the estate for distribution, whether real or personal, the auditor said: "It is to be noted that the will authorizes and empowers the trustees to make sale of the real estate at any time they may see fit, and directs that the proceeds thereof shall be held upon the same trusts and for the same purposes as the personal estate. At the death of her daughter, Adella Neel, she [the testatrix] provides for the distribution of her estate in the gives to her trustees authority to sell any real form of money, and, for that purpose, again estate then unsold, with the further provision that all of her estate shall be converted into money and that it shall be so distributed. The tive direction to sell the real estate, but, in orlanguage of the will scarcely constitutes a posider that the trustees may execute the will according to its purpose and intent, there would appear to be an absolute necessity to sell any of the real estate remaining unsold at the death of the daughter, Adella Neel, in order to make distribution of the estate in the manner provided under the will. The auditor is of opinion that there is under the provisions of this will such a blending of realty and personalty of the decedent's estate as to show that she intended to create a common fund from both and to bequeath such fund in the form of money; it is apparent, therefore, that the provisions of the will worked a conversion of her real estate into personalty, thus breaking the descent and vesting the entire estate as personalty. Dundas' App., 64 Pa. 325; Darlington v. Darlington, 160 Pa. 65, 28 Atl. 503.” Also see Ramsey v. Ramsey (No. 1) 226 Pa. 249, 75 Atl. 420. In this we find no er ror. [2, 3] The next important question in the case concerns the bequests to the brothers and sisters of the decedent, and the point is, when did they vest? In relation to this, after reviewing the will of Nancy Neel, and numerous relevant authorities, the auditor concluded that: the testatrix, or their children, gave a vested in- would pass immediately to their personal repre-ready to take at the date of her will, and at sentatives." Notwithstanding the able arguments presented by the appellants against this view, on the facts at bar, we are not convinced of error. The interests given to the brothers and sisters of the testatrix were willed to persons in being and ready to take actual possession immediately upon the death of her daughter, Adella, and these bequests were not upon an express precedent condition that the legatees should be alive at the time of the distribution, as in Roney's Estate, 227 Pa. 127, 129, 75 Atl. 1061, and other such cases; but the words of the will are: "I will, devise and bequeath all my property * * at the death of Adella to and among my brothers and sisters, share and share alike." And then the testatrix annexes the substitutionary clause: the time of her death, and that her daugh ter, Adella, because of her physical and mental condition, was never likely to marry or have children, it is plain that the testatrix, in all probability, intended to vest an estate in such brothers and sisters. As said by the present Chief Justice in Rosengarten v. Ashton, 228 Pa. 389, at page 396, 77 Atl. 562, at page 564, in distinguishing Carstensen's Estate, supra: * "The brothers and sisters of the testatrix were in esse at the date of her death, and the time legacies was fixed by the will, to wit, at the when they were to come into possession of their death of Edward Carstensen [here, Adella Neel]; the bequest was not qualified, but absolute and immediate; there was no condition "precedent attached to the gift which the legatees were required to fulfill prior to receiving the bequest; the time fixed by the testatrix for the enjoyment of the ulterior interests in her estate was not annexed to the legacies themselves and was in no sense a part of the description of the objects of her bounty; and it was evident that the only object of the testatrix in the postponement of the distribution of the estate among her brothers and sisters was a desire that she had to give her husband [here, her daughter] a life interest in it." "The children of any now or then deceased brother or sister to represent his or her parent and take the share he or she would take if living." If it were not for the substitutionary clause above quoted, there could be no question raised but that the interests taken by the brothers and sisters were vested,, quodam modo, at the death of the testatrix, subject to be divested should Adella die leaving children her surviving. Packer's Estate, supra. And, under the rule in Carstensen's Estate, supra, it is clear that the substitutionary clause did not change this condition of affairs, but mere The contingencies provided for, as this will was written, were such as might defeat the estates taken by the several brothers and sisters after they had vested, but, under the relevant authorities, these estates were so vested at the death of the testatrix that, upon the demise of any one of the legatees in the lifetime of Adella, without children him or her surviving, the interest in question would pass to his or her legal representatives; nevertheless, the estates given to the brothers and sisters were always subject to be divested, during the life of Adella, first, by the latter dying leaving children (Pack-ly added another contingency, the happening er's Estate [No. 2] 246 Pa. 116, 92 Atl. 70), and next by any of the former dying leaving children (Carstensen's Estate, 196 Pa. 325, 335, 46 Atl. 495; Massey's Estate, 235 Pa. 289, 297, 83 Atl. 1087). The first of these contingencies did not happen, and wherever the second occurred the auditor properly substituted the children, or their personal representatives, instead of their deceased father or mother. In Safe Deposit & Trust Co. of Pittsburgh v. Wood (No. 1) 201 Pa. 420, 427, 50 Atl. 920, 922, the rule is comprehensively stated thus: "The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment, for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession, for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate." Moreover, a legacy will always be regarded as vested rather than as contingent, unless the language of the will plainly indicates that the testator had a different intention; and here, when we consider that the brothers and sisters of the testatrix were alive and of which might defeat the estate taken by any one of the brothers and sisters. In short, the meaning of the language employed in the bequest under consideration is not that the brothers and sisters must live to the time of distribution in order to take a vested interest, but that the estates given to them respectively shall vest at once upon the death of the testatrix, and that the decease of Adella leaving children her surviving, or the demise of any one of the brothers and sisters, during the lifetime of Adella, leaving children him or her surviving, shall defeat the estates thus vested. Frasier v. Scranton Gas & Water Co., 249 Pa. 570, 95 Atl. 256, cited by some of the appellants, is a case where we construed the language employed in the will as creating a condition precedent that, in order to take, the remainderman had to be alive at the death of the life tenant; therefore we determined the remainder was contingent. On the facts in that case, as in many others of its kind, so far as concerns its final determination, the result would have been precisely the same whether the limitation over were construed as a contingent remainder or as one vested, quodam modo, subject to be defeated. The will in the Frasier Case and the one at bar are not alike, and the decision there does not control here; the language of the present, tle or dispose of any real or personal property, limitation is much more similar to that em so and in such manner that the rents, issues, partially accumulated for any longer term than interest, or profits thereof, shall be wholly or the life or lives of any such grantor or grantors, settlor or settlors, or testator, and the term of twenty-one years from the death of any such after such decease during the minority or regrantor, settlor, or testator, that is to say, only spective minorities with allowance for the period of gestation of any person or persons, who, under the uses or trusts of the deed, will, or other assurance directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests, and profits so directed to accumulate, and in every otherwise than as aforesaid, such direction shall case where any accumulation shall be directed be null and void in so far as it shall exceed the limits of this act, and the rents, issues, interests and profits, so directed, to be accumulated contrary to the provisions of this act, shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed." ployed in Carstensen's Will, 196 Pa. 325, 326, 46 Atl. 495. While, after the several limitations in her will, the present testatrix provides, "and for the purpose of distributing the estate to and among whichever class shall happen then to be entitled I do authorize, etc.," yet, when this language is taken with its context, it is clear that the word "class" is not meant in a technical sense. The testatrix, on the one hand, gave her residuary estate to her lineal descendants, and on the other, in default of such descendants, then to her collateral heirs, and these two sets are what she plainly had in mind when she used the word "class"; by the phrase "shall happen then to be entitled," we take it that the testatrix meant, shall happen to be entitled to the beneficial enjoyment of my estate at the death of Adella, and nothing more. The general subject cov-ing the act of 1853, supra, and quoting from ered by the branch of the case now before us the will of the testatrix, the auditor, in dishas been so fully discussed in recent deci- cussing the branch of the case now under consions of this court, comprehending practi- sideration, says: cally all the points urged by the present appellants, that it would serve no useful purpose to go further into the matter at the present time; it is sufficient to say that we agree with the conclusions in relation thereto reached by the auditor and affirmed by the court below. See, particularly, Packer's Estate, supra, where most of the relevant authorities are reviewed. Tatham's Estate, 250 Pa. 269, 95 Atl. 520, and Carstensen's Estate, supra. [4, 5] The last branch of the case to be considered, and, perhaps, the most important one, concerns the subject of the accumulations referred to in the third finding of fact (see reporter's notes, supra); in this connection the auditor states: the trustees "The original fund passing into the hands of and constituting the corpus of the estate has been increased by the receipt of rents and interest in excess of the needs of the life tenant and the expenses of administering the estate. The questions to be determined are whether such increase, now amounting to more than $48,000, constitutes unlawful accumulations in violation of the statute, and whether it is to be distributed as part of the original fund and to the same persons, or otherwise. Counsel for the kindred of Adella Neel on her father's side contend that this increase of the fund constitutes unlawful accumulations, and that, as to such amount, Nancy Neel died intestate, and therefore the same would pass under the intestate laws to her daughter, Adella Neel; while counsel for the brothers and sisters of Nancy Neel and their issue contend that the entire fund, corpus and increase, should pass (to them) under the terms of the will giving the estate at the death of Adella Neel without children to brothers and sisters of the testator or their children, that this provision operates as a residuary clause, and the beneficiaries thereunder should be entitled to take as residuary legatees." The auditor calls attention to the act of April 18, 1853 (P. L. 507) § 9, which provides as follows: "No person or persons shall, after the passing of this act, by any deed, will, or otherwise, set After stating the above contentions, cit * * * * that the testatrix did not in positive language their issue that the purpose and intention of the testatrix was that her entire estate remaining after the death of her daughter should pass to and become vested in her own blood relations. There is sufficient in the will to justify this conclusion. If this contention be true, then it was the intent of testatrix, as expressed by her will, that the corpus of the estate, together with any accumulations which might possibly be in the hands of the trustees, at the death of Adella Neel, should go to her brothers and sisters or their issue. If, however, this was her intent, then such intent would be unlawful so far as it concerns any accumulations now in the hands of her trustees under the act above mentioned, since these accumulations were not to be made during the minority of any person, nor during the minority of a person who would for the time being if of full age be entitled unto the rents, issues, interest and profits so directed to accumulate.' If, therefore, the indirect result of the provisions of the will of testatrix have brought about accumulations and these accumulations were not in favor of either class of persons mentioned in the act, they could not be considered lawful, and would therefore fall. If, on the other hand, there was no intent to accumulate beyond the limits prescribed by the act, then it cannot be assumed that the testatrix intended that such excess as now appears to exist should pass under the provisions of her will. If she did not have in contemplation that there might be any such excess, or increase, then it cannot be successfully contended that she disposed of such increase by her will. If, therefore, the testatrix did not have an intention of creating any accumulation, or increase, of her estate in the hands of her trustee she could have no intent to provide for the devolution of the whole fund, principal and income, to her brothers and sisters and their issue; if this be the fact, then she must be held to have tate, supra, to the effect that, if the unlawful accumulations relate to a vested interest, taking effect in immediate possession, the released income goes at once to the beneficiary, bút, if to an interest not vested in immediate possession, the income goes to the residuary legatee or devisee, "unless the residuary estate itself be the subject of the provision, in which case the income goes under the intestate laws to the next of kin or heirs." See, also, Grim's Appeal, 109 Pa. 391, 397, 1 Atl. 212; Rhodes' Estate, 147 Pa. 227, 231, 23 Atl. 553; Roney's Estate, supra, 227 Pa. 131, 75 Atl. 1061; Wright's Estate, supra, 227 Pa. 74, 75 Atl. 1026; Sternbergh's Estate, 250 Pa. 167, 171, 95 Atl. 404. The auditor then goes on to say: "To concede that the accumulations provided for in this case were unlawful and yet distribute them to the persons for whose benefit they were (in effect) directed, would only be to accomplish by an indirect method that which is forbidden by the statute-in violation of the spirit thereofand it would be within the prohibition of the statute both as to time and as to parties, as it does not appear that any of these collateral kindred were minors at the time of the death of Nancy Neel, nor that they were the persons entitled to the rents, issues and profits if the direction to accumulate had not been made, they not being entitled to receive anything in possession until after the death of Adella Neel." We concur in the auditor's views as just quoted, and we agree with him that none of the cases relied upon by the appellants controls the point now under consideration. Eberly's Appeal, 110 Pa. 95, 1 Atl. 330, only decided that the accumulations in that case did not exceed a reasonable contingent fund, and, for that reason, no distribution should be ordered; and this is true of McIntosh's Estate, 158 Pa. 528, 537, 27 Atl. 1044, 1047, 1048. Hibb's Estate, 143 Pa. 217, 22 Atl. 882, simply determined that the amount then in the hands of the trustee should be temporarily held in the interest of judicious manage died intestate as to the accumulated income now in the hands of her trustees, and such sum would pass as if Nancy Neel had died intestate." The auditor thus concluded that on either line of reasoning, i. e., a breach of the act or an intestacy, the estate of Adella Neel was entitled to the accumulations, and, in support of his conclusions, he cites and discusses Washington's Estate, 75 Pa. 102 (in connection with which see what is said in Wright's Estate, 227 Pa. 69, at page 74, 75 Atl. 1026), McKee's Appeal, 96 Pa. 277, Ed-ment, and therefore the trust was continued wards' Estate, 190 Pa. 177, 42 Atl. 469, Roney's and no distribution made. King's Estate, Estate, 227 Pa. 127, 75 Atl. 1061, Walter's Es- 210 Pa. 435, 59 Atl. 1106, really only detertate, 223 Pa. 598, 72 Atl. 1062, and Howell's mines the question whether or not the acEstate, 180 Pa. 515, 37 Atl. 181, after which cumulations were then distributable, and how he considers a contention which is strenuously much thereof should be held as a contingent urged by certain of the present appellants, fund. McKee's Appeal, 96 Pa. 277, is a case i. e., that, if the fund in question represents unlawful accumulations in breach of the act, the money should pass to the brothers and sisters of the testatrix, or their issue, as residuary legatees, and not to the heirs of Adella Neel. In negativing this view of the case, the auditor said that, under the decisions already cited, he could not sustain the above-stated contention, for, according cumulations were properly awarded to the to the terms of the will, the brothers and sisters, or their issue, were not entitled to actual possession of any part of the estate until after the death of Adella Neel, and the residuary estate itself was the subject of the provision that, in effect, directed the accumulations; citing in support of this what where the accumulations were awarded to one who was entitled as an heir at law; the lower court saying (96 Pa. 279) that it was immaterial whether he took under the intestate law or because of the statute against accumulations; we affirmed without ruling just how he took. In Weinmann's Estate, 223 Pa. 508, 72 Atl. 806, the unlawful ac residuary legatee, for the direction to accumu. late was independent of and not contained in the residuary clause of the will, and the accumulations fell into the residuary estate just as they would have done had the will not so provided. Also in Wright's Estate, 227 Pa. 69, 74, 75, 75 Atl. 1026, there was a |