Kessler Estate

47 Pa. D. & C.2d 73, 1968 Pa. Dist. & Cnty. Dec. LEXIS 73
CourtPennsylvania Orphans' Court, Montgomery County
DecidedOctober 24, 1968
Docketno. 68,759
StatusPublished
Cited by1 cases

This text of 47 Pa. D. & C.2d 73 (Kessler Estate) is published on Counsel Stack Legal Research, covering Pennsylvania Orphans' Court, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kessler Estate, 47 Pa. D. & C.2d 73, 1968 Pa. Dist. & Cnty. Dec. LEXIS 73 (Pa. Super. Ct. 1968).

Opinion

ADJUDICATION

TAXIS, P. J.,

The trust was created by deed dated January 2, 1958. For her lifetime, settlor reserved to herself the right to require repayment of so much of the net income and principal of the trust as she might demand in writing. Settlor died on October 17, 1967, and her death is the event which gives rise to the filing of the first account. In article 6 of the deed, settlor gave her trustee “sole and uncontrollable discretion” to pay income and principal “. . . for the support, maintenance, benefit and comfort of: Primarily, Settlor’s sister, Laura Kessler, for life; secondarily, Settlor’s sister, Anna K. Schenk, and Settlor’s sister-in-law, Nellie Kessler, for their respective lives.” Settlor further provided that the trustee, again in his “sole uncontrollable discretion,” should “. . . determine the proportions in which the net income from the trust is allocated among settlor’s sisters and sister-in-law, or the survivors . . .” and “. . . to determine the amounts of principal to be paid to Settlor’s sisters and sister-in-law or any of them . . .”

In article 7, settlor provided that after her death, “. . . Out of the principal of the trust then remaining and any accrued but undistributed income therefrom, [75]*75. . a certain charitable gift should be made, and then the “balance of principal and income then remaining” was given to settlor’s nieces.

At settlor’s death, Laura Kessler and Nellie Kessler were dead, leaving Anna K. Schenk the sole surviving life tenant. The trustee, in exercise of his discretion, has paid Anna K. Schenk $50 per month, in the absence of any ascertained need to make payments greater than this for her support, maintenance, benefit and comfort. Anna K. Schenk, however, claims the entire net income of the trust under the provisions of article 6. The interpretation of this language, therefore, has been submitted to the court for determination in this adjudication.

In such matters, the expressed intent of the settlor always rules as long as it is legal. Here, it is clear that settlor at no point gave any of the life tenants a fixed proportion of the income of the trust, except through the exercise of the discretion vested in her trustee. Anna K. Schenk contends, however, that this discretion is limited to the determination of the proportions in which the life tenants should share the income and since there is now but one life tenant, she becomes entitled to all of it. In support of this position, her counsel has advanced several arguments, which we will consider in order.

The first is that the language of article 6 (where the trustee is given discretion to determine the proportions in which the income is to be allocated among the life tenants) expresses an intention to distribute all income, at all times, to the named fife tenants. However, reference to “the net income” in this sentence is neither logically nor linguistically inconsistent with the stronger and more precise language used earlier by the settlor in article 6, namely, “so much of the net income,” in relating her gifts of income to the exercise of the trustee’s discretion. The phrase “so much of’ [76]*76appears in several other places in the trust instrument; the argument advanced would make these words surplusage here which is not a reasonable construction especially where they denote a concept (that is, all, nothing, or any amount in between) which could hardly be more neatly expressed.

Counsel for Anna K. Schenk next points to the language in article 6 which gives the trustee sole and uncontrollable discretion to “determine the amounts of principal to be paid, etc. . . . ,” contending that a distinction should be drawn between the word “amounts” and the phrase “so much of,” heretofore discussed. It is true that a difference in language presumptively indicates a different intent; but it does not follow from this minor difference in terminology that settlor meant to require all of the income to be currently distributed. Whatever difference between these two forms of expression settlor might have contemplated, neither one is the equivalent of “all of,” which is the substance of this contention. In addition, the phrase “so much of’ is applied by settlor to principal as well as income in the first sentence of article 6, which is the part thereof which makes the gifts of income to the life tenants.

The next contention is that Sterrett’s Estate, 300 Pa. 116, applies to the present case, and rules it in favor of Anna K. Schenk. We think it is distinguishable. In that case, the gift was in trust “. . . to pay the net annual income to (three daughters) and the survivors and survivor of them, for and during their natural lives, in such amounts and proportions as (the trustee) may deem needful . . .” The gift was of “the net income,” and no qualifying phrase such as “so much of’ or any other limiting language was used. The Supreme Court held that the entire net income was distributable to the daughters, and that the trustee could only determine proportionate shares. [77]*77This holding is clearly proper, but the distinction between its language and the present case is such that it bears little on the present problem.

Counsel for Anna K. Schenk next turns his attention to the provision in article 7 that, after the death of settlor and the survivor of the life tenants, “out of the principal of the trust then remaining and any accrued but undistributed income, ...” certain gifts to remaindermen shall be paid. By this, it seems probable that settlor contemplated the possibility of the accumulation of income by the trustees. It is argued, however, that “accrued” does not mean “accumulated,” citing Winsor Estate, 11 D. & C. 2d 577, 7 Fiduc. Rep. 432, a case in this court. That case, however, dealt with the problem of the ownership of trust income received by the trustee or to which he had become irrevocably entitled prior to the death of a life tenant, but which had not been paid over to the life tenant before he died. That issue is remote from the present one, and for purposes here the case simply shows that there may be an overlap in the use of the terms “accrued” and “accumulated.” Actually, the case held that income accrued before the life tenant’s death is due his estate, and it is obvious that settlor here did not use it in that sense for the “accrued” income in her trust was specifically given to the remaindermen.

We think, therefore, that the clear intent of settlor was to give her trustee a broad discretion during the lifetime of Anna K. Schenk to control both the income and principal of the trust for her support, maintenance, benefit and comfort, but at the same time to give consideration to the interests of the respective remaindermen of the trust. There is no allegation of any abuse of this discretion. It is evident that settlor reposed a considerable amount of confidence in the ability of her trustee to provide for all of the objects of her bounty. There is no evidence that she intended to [78]*78impose the artificial limitation sought by Anna K. Schenk on his right to do this.

Two cases have been brought to our attention which may appear to reach a different result, but which, in fact, are considerably different from the present one. The first is McKeown Trust, 384 Pa. 79. There, an unmarried woman created an inter vivos trust in 1942, under which the trustee was to pay to her from income and, if necessary, principal, $150 per month for her life. At her death, the trustee was to “. . . distribute the remaining corpus . .

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Bluebook (online)
47 Pa. D. & C.2d 73, 1968 Pa. Dist. & Cnty. Dec. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-estate-paorphctmontgo-1968.