Dunkle Trust

63 Pa. D. & C.2d 112, 1973 Pa. Dist. & Cnty. Dec. LEXIS 297

• Court: Pennsylvania Court of Common Pleas, Berks County
• Decided: November 5, 1973
• Docket: file no. 34807
• Status: Published

Opinion

MUTH, P. J.,

Samuel L. Dunkle died, testate, on July 20, 1946. In his will, he created a trust for the benefit of his wife, Mary R. Dunkle; his sons, Claude and Bayard; and his two granddaughters, Catherine Dunkle Smeach and Mary Dunkle Worley. In creating the said trust, the will contains the following language: After providing that the income be paid to his two granddaughters, “for and during their natural lives and immediately upon their death the principal of the trust shall be equally divided between the issue of Catherine Dunkle Smeach and Mary Dunkle Worley, per stirpes and not per capita.”

Catherine Dunkle Smeach died on May 3,1973, survived by her son, M. Frank Smeach, Jr., as her only issue.

The accountant, National Central Bank, proposes that the principal of the trust continue until both of the granddaughters have died. It is the above-mentioned language of the will which requires interpretation.

The will of decedent, like the one in McIntyre Estate, 18 D. & C. 2d 1, is “inept and ambiguous.” The will apparently was written by someone not trained in the writing of wills. It is necessary, therefore, to determine what was the intent of testator. To do so, we must, of course, follow the guidance laid down by the courts in such decisions as Britt Estate, 369 Pa. 450; March Estate, 357 Pa. 216; and Collins Estate, 393 Pa. 519.

In McIntyre Estate, supra, in order to determine the intent of the testator, the court construed the word “either” to mean “both.” The court pointed out that it is not uncommon to do so where the context clearly indicates testator’s words, as used, intended to mean “both.” The court cited as authority Sowers Estate, 383 Pa. 566 and Lifter Estate, 377 Pa. 227. Reference was made to Webster’s New International Dictionary, as follows:

“When used as an adjective ‘either’ means ‘each of two; the one and the other’, also ‘formerly both’, and when used as a pronoun it means ‘the one or the other’. Use of the pronoun instead of the adjective to mean ‘the one and the other or ‘both’ is not uncommon.”

If the proposal of the accountant be followed, the issue of Catherine Dunkle Smeach, namely her only child, M. Frank Smeach, Jr., will have a vested interest in both the income and the principal of one-half of the trust created by decedent.

In his will, testator directs that upon “their death,” the principal shall be distributed per stirpes. It will be noticed that “their” is plural and “death” is singular, and distribution is directed to be made per stirpes. Such use does not indicate that the words were used to mean both “deaths.”

The only issue of Catherine Dunkle Smeach is her son, and it is very unlikely that it was the intent of testator that he, as the issue of his mother, be required to await the death of his mother’s sister before being entitled to distribution per stirpes of his interest in the trust.

We, therefore, conclude that testator intended that upon the death of each of his granddaughters, her interest in the trust be distributed to her issue per stirpes.

We, therefore, make the following

ORDER

And now, to wit, November 5, 1973, the National Central Bank, trustee and accountant, is ordered and directed to file a schedule of distribution in conformity with this order, providing for the termination of the interest in the trust of Catherine Dunkle Smeach, and distribution of her interest in the said trust to be made to her issue, M. Frank Smeach, Jr.; said schedule of distribution to be filed within 10 days of the date hereof.