Borie Estate

74 Pa. D. & C.2d 441, 1976 Pa. Dist. & Cnty. Dec. LEXIS 172
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 18, 1976
Docketno. 1441
StatusPublished

This text of 74 Pa. D. & C.2d 441 (Borie Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borie Estate, 74 Pa. D. & C.2d 441, 1976 Pa. Dist. & Cnty. Dec. LEXIS 172 (Pa. Super. Ct. 1976).

Opinion

SHOYER, J.,

M. Clementine Borie died on August 7, 1922, leaving a will and first codicil, both dated June 13, 1922.

By the terms of her will, the principal sum of $500,000, plus the residue of the estate after provision for other specific bequests and payment of decedent’s debts, funeral expenses and Federal and State inheritance, transfer and estate taxes, was bequeathed to the Philadelphia Trust Company in trust. Philadelphia Trust Company, by merger, was succeeded by Fidelity-Philadelphia Trust Company, now The Fidelity Bank.

Both the specific bequest to the trustee (under clause fifth), and the bequest to the trustee of the residue (under clause eighteenth), were made pursuant to the same language. Therein, testatrix devised and bequeathed both the aforementioned $500,000, and her residuary estate in trust, and then to pay the income therefrom in equal shares to the lawful sons of her nephew, William W. Buckley, living at the time of her death. Upon the death of any such son leaving lineal descendants then liv[443]*443ing, the trustee was authorized to pay over the principal of the share, the income of which such son was entitled to at the time of his death, to such lineal descendants per stirpes. In case such son should die leaving no lineal descendants living, the will stated that there would be no distribution of principal at that time but the entire income should thereafter be paid to his surviving brothers, share and share alike. Should the last survivor of the said son die without leaving any lineal descendants living at the time of his death, then upon the further trust, viz., trustees were authorized to pay the principal remaining to the lineal descendants then living of the said William W. Buckley, per stirpes and not per capita. In default of any such lineal descendants, trustees were to pay the principal to the Contributors to the Pennsylvania Hospital.

William W. Buckley had seven sons: Dorsey A. Buckley who died March 10, 1973, leaving to survive him one daughter, Virginia B. Tatoul; Edward S. Buckley, who is alive with children and grandchildren; Elias F. Buckley, who is living and has one son; Henry W. Buckley, who died October 21, 1952, without issue; Walter White Buckley, who is alive with children and grandchildren; George Douglas Buckley, who died April 16, 1945, without issue; and John Brooke Buckley, whose death on May 29, 1974, without issue, leaving an unadopted stepdaughter, occasions the filing of this account.

At the audit of the second account of The Fidelity Bank, counsel for the accountant properly raised for disposition by this court the question of whether Marjorie Casey Wolff, stepdaughter of John Brooke Buckley, is a lineal descendant of the said John Brooke Buckley and thereby entitled “to receive that share of the corpus or principal of the trust [444]*444from which the said John Brooke Buckley had received the income.” Accountant has submitted a brief that answers the question in the negative.

Pursuant to a petition filed in this court, Herman J. Obert, Esq., was appointed on January 23, 1975, guardian ad litem for certain minors and trustee ad litem for all unborn or unascertained persons interested in the residuary trust created under the will of M. Clementine Borie. He reviews therein the history of the trust, the relationship of the parties in interest, states his approval of the investment and management of the fund, and also his approval of the counsel fee charged. Mr. Obert states his position with regard to the question presented to this court for adjudication. The guardian and trustee ad litem agrees with the position of the accountant stated above. Mr. Obert’s report is accepted.

It has been held in many jurisdictions that the words “lineal descendants” will be construed as connoting blood relationship unless the testator intended a broader meaning. See Appeal of Wildman, 151 Atl. 265, 266 (Conn. 1930); Green v. Hussey, 117 N.E. 798 (Mass. 1917); Bridgeport City Trust Co. v. Buchtenkirk, 124 A. 2d 231, 233 (Conn. 1956).

In construing any portion of a writing, the writer’s intent shall always prevail. This intent shall be ascertained by such methods as the circumstances surrounding the making of the documents and the other language in the document. Only if the language in the writing is ambiguous or the writer’s intent is for any reason uncertain will it be necessary to resort to the canons of construction: Thomas Estate, 457 Pa. 546, 327 A. 2d 31 (1974); Hamilton Estate, 454 Pa. 495, 312 A. 2d 373 (1973).

Testatrix died on August 7, 1922, less than three [445]*445months after executing her will. Testatrix describing the objects of her bounty in her will, uses several descriptive classifications. In article sixth, she bequeaths silverware to the lawful sons of her nephew, William W. Buckley. Under article eleventh, she bequeathed $20,000 to Louise Hoyt Allen, and in case she predeceases the testatrix, the said $20,000 shall be divided between such of her children as may be alive at the time of her death. Finally, in articles fifth and eighteenth, testatrix bequeathed in trust her residuary estate to the lineal descendants then living of a deceased life income beneficiary. In specifying her remainder-men as “lineal descendants,” testatrix has not chosen to add stepchildren to the class nor to expressly exclude them. The will was evidently lawyer-drawn and since there is no uncertainty about the phrase “lineal descendants,” etymologically or judicially, there was no need for testatrix to say more. Thus, when she specified “the lawful sons of my nephew, William W. Buckley” in articles fifth, sixth and eighteenth, it was unnecessary for her to expressly exclude daughters or illegitimate sons. The words “lawful sons” speak for themselves and require no construction. It was only in days long gone by, when scriveners were paid by the word or by the line, that they found reason to accentuate the positive by expressly excluding the negative.

When in Strunk Estate, 369 Pa. 478, 87 A. 2d 485 (1952), the daughter of an adopted child sought judicial classification as a “lineal descendant born in lawful wedlock” to reduce the inheritance tax rate from five percent to two percent on her share, Chief Justice Stern, writing for a unanimous Supreme Court, said, 369 Pa. at 479-80:

“Appellants insist that they come within the term [446]*446‘lineal descendants born in lawful wedlock.’ This contention must be rejected when viewed in the light either of the ordinary meaning of the term ‘lineal descendants’ or the interpretation consistently given to it by previous descisions of our appellate courts.
“Standard dictionaries define ‘descendant’ as ‘one who is descended, as issue, lineally from another, however remotely’;1 ‘one who decends, as offspring, however remotely’;2 ‘one who “descends” or is descended from an ancestor; issue, offspring (in any degree near or remote)’.3 The word ‘lineal’ is defined as ‘of the nature of an ancestral fine or lineage’;1 ‘in the line of succession through lineage;’2 while ‘lineage’ is defined as ‘ancestral line of consanguinity; pedigree ;n ‘lineal descent from an ancestor; ancestry, pedigree.’ It is obvious that all these definitions involve the inherent concept of offspring in the fine of generation, that is, descendants who proceed in direct fine by birth from the ancestor. Therefore a stranger in blood

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Bluebook (online)
74 Pa. D. & C.2d 441, 1976 Pa. Dist. & Cnty. Dec. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borie-estate-pactcomplphilad-1976.