Tower Estate

27 Pa. D. & C.2d 114, 1962 Pa. Dist. & Cnty. Dec. LEXIS 309
CourtPennsylvania Orphans' Court, Philadelphia County
DecidedMarch 20, 1962
Docketno. 199
StatusPublished

This text of 27 Pa. D. & C.2d 114 (Tower 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
Tower Estate, 27 Pa. D. & C.2d 114, 1962 Pa. Dist. & Cnty. Dec. LEXIS 309 (Pa. Super. Ct. 1962).

Opinion

Lefever, J.,

Where testator, who died in 1889, designated the beneficiaries of the income and principal of his trust estate by the terms “children”, “grandchildren”, “issue” and “lineal descendants”, and stated that the designated beneficiaries were to take their shares of income “in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent”, do the two petitioners who were adopted by a deceased grandchild in 1941 share the income with two natural children of the same grandchild? This is the question presented by this petition to review the adjudication filed by the undersigned on April 1, 1960, and schedule of distribution filed pursuant thereto and approved December 22, 1960.

Testator died July 24, 1889, leaving a will, dated May 21, 1889, which was duly probated on July 31, [116]*1161889. By the terms of his will, testator provided, inter alia:

“ITEM 4. I have living at the date of this my Will ten lineal descendants; that is to say, five children and five grandchildren.” [He then named the five children and five grandchildren].
“ITEM 5. All the rest, residue and remainder of all my Property and Estate whatsoever and wheresoever, Real, Personal or Mixed, I give devise and bequest unto ... [trustees, in trust for my wife and children] ... At and after the decease of each of my said five children, severally and successively, his or her share of the income from my Residuary Estate, as above designated shall be appropriated and divided among the children and issue of deceased children of each one of my children as he or she may successively die, in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent, and in like manner the share of income which may accrue to any of grandchildren or more remote lineal descendants under this my Will and who may die before the period appointed for the distribution of the principal of my Residuary Estate shall in like manner accrue to their children and issue of deceased children as above provided, and such payment or application of the income of a deceased child’s or grandchild’s share among his or her children and issue shall continue until the arrival of the period for division of the capital of my Residuary Estate, and if any one or more of my children or grandchildren shall die without leaving any issue to survive him or her, then the share of income theretofore appointed and payable to such decedent shall go to the other of my children or grandchildren, (as the case may be), then living and the issue of any others of my said children or grandchildren who may then be [117]*117deceased, in the same way and manner in all respects as are limited and provided in respect to their original shares which shall simply be augmented thereby but in all respects covered by the same provisions as applied to their original shares, PROVIDED always, however, that I authorize and empower each one of my children or grandchildren who may leave a husband or wife surviving him or her, by his or her Last Will and Testament, or any writing in the nature thereof by him or her signed, to make provision for any surviving husband or wife either of them may leave surviving, to continue during the life but not to exceed one-fourth of the income which would have been payable to such testator or appointer if he or she had remained living ... I direct the division of all the capital of my Residuary Estate among all my lineal descendants then living, to each an equal fractional share, thereof without regard to their stock or the degree of their descent from me...”
“ITEM 12. If I have not already sufficiently declared my intention in respect thereto, I do now declare that... each and all of the beneficiaries who may die leaving issue such issue shall succeed to the share which the decedent would have taken if living, and if more than one, in equal shares...”

After the death of testator’s wife, income was paid in equal share to his five named children for their respective lives, and thereafter to his grandchildren for their lives, in accordance with the terms of the will.

The share of income here involved is that of testator’s grandson, Geoffrey Tower, who died March 26, 1957, survived (a) by his wife, who thereafter died December 4, 1959; (b) by two natural children, Charlemagne Tower, 4th, and Helen Tower Brunet; and (c) by petitioners, Annette Tower Earl and Tripp Tower, who were adopted by Geoffrey Tower in 1941.

[118]*118By the adjudication, the two natural children take the grandson’s share of the income. However, accountant did not know of the existence of the two adopted children and, therefore, did not notify them of the audit. Their rights, if any, were not considered by the auditing judge.

Do the adopted children of Geoffrey Tower have any rights?

Testator was an astute, wealthy business man. His will was clearly and carefully drawn. He left no detail to chance. He set up a trust to pay the income so long as permitted under the rule against perpetuities, on a per stirpital basis, and at the expiration of this period to divide the corpus per capita “among all my lineal descendants then living.”

Testator made constant reference throughout his will to members of his blood, i.e., “children”, “grandchildren”, “issue” and “lineal descendents”. The sole exceptions to “blood” relatives were his own wife and the surviving spouses of children and grandchildren, to whom he carefully and precisely authorized his children and grandchildren to appoint to the limit of one fourth of their respective shares of income. It is clear, therefore, that testator knew how to provide for blood relatives and for strangers to the blood; and that if he wished to include “adopted children” of a grandchild, he could have, and would have, expressly said so. Testator’s intention, affirmative or negative, governs. Nothing in the will shows an intention to include the petitioners.

Adopted children’s rights of inheritance are determined by the statutes of inheritance in force at the time the inheritance became effective, and, when there is a will, by the terms of the will itself: Storb Appeal, 400 Pa. 567, 572. The meaning of the words used by testator must be determined from the context of the [119]*119will and the law in force in 1889 when the will became effective: Collins Estate, 393 Pa. 195, 200. The canons of construction also require this: Bigony Estate, 397 Pa. 102. There it was stated, at page 104:

“The controlling element in the construction of every will is of course the intention of the testatrix. Mulert Estate, 360 Pa. 356, 61 A. 2d 841. This intent must be ascertained by a consideration of the entire will which is to be read in the light of the surrounding circumstances at the time it was written. March Estate, 357 Pa. 216, 53 A. 2d 606. Since there is no uncertainty or ambiguity in the will, the meaning must be ascertained from the language therein. It is not what this Court thinks she might or would have said, or even what the Court thinks she meant to say, but what is the clear meaning of her words ...”

Testator, in most uncommon manner, enumerated his children and grandchildren by name in item 4 of his will. Testator then provided that during their lives his children were to receive income.

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Cite This Page — Counsel Stack

Bluebook (online)
27 Pa. D. & C.2d 114, 1962 Pa. Dist. & Cnty. Dec. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-estate-paorphctphilad-1962.