Kennedy's Estate

Philadelphia County Orphans' Court

Kennedy's Estate

9 Pa. D. & C. 1, 1927 Pa. Dist. & Cnty. Dec. LEXIS 1

CourtPennsylvania Orphans' Court, Philadelphia County

DecidedMarch 2, 1927

DocketNo. 448

StatusPublished

This text of 9 Pa. D. & C. 1 (Kennedy's Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennedy's Estate, 9 Pa. D. & C. 1, 1927 Pa. Dist. & Cnty. Dec. LEXIS 1 (Pa. Super. Ct. 1927).

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Opinion

Van Dusen, J.,

-Testator established a trust for a limited period, and in paragraph (b) gave the income in five shares, one to each of three daughters, one to the children of a deceased daughter, and one to the same three daughters “jointly, or the survivor or survivors of them.” We have decided as to income, in another proceeding, that these words created a sur-vivorship of income among the daughters whenever their deaths occurred during the trust; that is, that they are not to be confined to survivorship as of the death of the testator.

Now the trust has come to an end, and in this partition proceeding we have to determine preliminarily the respective shares of the parties in principal in order that they may properly exercise their rights to accept or reject at a valuation: Donohoe’s Estate, 5 D. & C. 165.

One of the three daughters died. A few days later the trust was ended by the deed of the other two, under a power given them in the will. At that time, therefore, these two alone were entitled to income. The will disposes of principal at the end of the trust, “to the same persons and in the same shares or proportions as in paragraph (b) is provided for the distribution of the income.” Does the principal follow the fluctuations of shares of income and go as the income was going when the trust came to an end? The words are broad; this would be their natural meaning; and we find nothing to qualify them, or to confine their application to the shares as they existed at the beginning of the trust. If a share of income is jointly held with right of suvivorship, principal given “in the same shares or proportions” must be jointly held also.

The ease is materially different from Dutilh’s Estate, 286 Pa. 389. There a survivorship of all the income was provided for among three daughters if they died without issue. The disposition of principal, however, referred repeatedly to the share of each respective daughter, and it went one way if [3]*3there was issue and another way if there was none. This specification as to each daughter was thought to preserve the respective shares of principal in spite of survivorship of income; and, indeed, it must have been so, for otherwise the disposition of principal ascribable to a daughter who died first and left no issue would have had no effect.

In the present case there is no such specification and disposition of the share of each daughter. If there were, there would be an unquestioned share ascribable to each without survivorship, to which the disposition of principal could apply; the only doubt is as to the further application of the joint share.

We, therefore, determine that the parties are entitled to the lands described in the petition in the proportions set out therein, viz.: Helen K. Trump, 3/10; Anna K. Wymond, 3/10; Vida K. McClure, a minor, 2/10; Myra K. Comber, a minor, 1/10; Margaret K. Comber, 1/10.

The parties, therefore, have leave to proceed according to law.

Thompson, J., did not sit.

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Van Dusen, J.,

-Testator established a trust for a limited period, and in paragraph (b) gave the income in five shares, one to each of three daughters, one to the children of a deceased daughter, and one to the same three daughters “jointly, or the survivor or survivors of them.” We have decided as to income, in another proceeding, that these words created a sur-vivorship of income among the daughters whenever their deaths occurred during the trust; that is, that they are not to be confined to survivorship as of the death of the testator.

Now the trust has come to an end, and in this partition proceeding we have to determine preliminarily the respective shares of the parties in principal in order that they may properly exercise their rights to accept or reject at a valuation: Donohoe’s Estate, 5 D. & C. 165.

One of the three daughters died. A few days later the trust was ended by the deed of the other two, under a power given them in the will. At that time, therefore, these two alone were entitled to income. The will disposes of principal at the end of the trust, “to the same persons and in the same shares or proportions as in paragraph (b) is provided for the distribution of the income.” Does the principal follow the fluctuations of shares of income and go as the income was going when the trust came to an end? The words are broad; this would be their natural meaning; and we find nothing to qualify them, or to confine their application to the shares as they existed at the beginning of the trust. If a share of income is jointly held with right of suvivorship, principal given “in the same shares or proportions” must be jointly held also.

The ease is materially different from Dutilh’s Estate, 286 Pa. 389. There a survivorship of all the income was provided for among three daughters if they died without issue. The disposition of principal, however, referred repeatedly to the share of each respective daughter, and it went one way if [3]*3there was issue and another way if there was none. This specification as to each daughter was thought to preserve the respective shares of principal in spite of survivorship of income; and, indeed, it must have been so, for otherwise the disposition of principal ascribable to a daughter who died first and left no issue would have had no effect.

In the present case there is no such specification and disposition of the share of each daughter. If there were, there would be an unquestioned share ascribable to each without survivorship, to which the disposition of principal could apply; the only doubt is as to the further application of the joint share.

We, therefore, determine that the parties are entitled to the lands described in the petition in the proportions set out therein, viz.: Helen K. Trump, 3/10; Anna K. Wymond, 3/10; Vida K. McClure, a minor, 2/10; Myra K. Comber, a minor, 1/10; Margaret K. Comber, 1/10.

The parties, therefore, have leave to proceed according to law.

Thompson, J., did not sit.

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Bluebook (online)

9 Pa. D. & C. 1, 1927 Pa. Dist. & Cnty. Dec. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedys-estate-paorphctphilad-1927.

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