202 Pa. 535 | Pa. | 1902
There are no less than five appeals by the executors and heirs from this decree confirming in the main the report of the auditor distributing the funds in the hands of the executors of Joseph Bacon, deceased, who was sole surviving trustee under deed of trust of Charles W. Bacon, deceased, said deed being dated September 30, 1858. The clause in the deed which is the cause of different and conflicting interpretations created a trust for his five nieces for life, with remainder “in trust as to one equal fifth part of said estate hereby conveyed, for the use of any issue which said niece may leave, if more than one in equal shares in fee simple, and if any one of my said nieces shall die without issue, then the share of the one so dying shall go to her surviving sisters or sister respectively, that is, the daughters of David Bacon shall be entitled to receive the share of one of their sisters so dying without issue, and the daughter of Thomas Bacon shall be entitled to receive the share of her sister so dying without issue, but the same shall still be held by the trustees above named upon the same trusts as are above set out and hereinafter provided for.”
The three nieces, daughters of David Bacon are now dead as also the two nieces, daughters of Thomas Bacon. Susan L. Hancock died March 19, 1878, leaving issue who still survive ; Anna B. Watson died September 6, 1885, leaving a son who still survives; Mary Bacon died December 17, 1898, unmarried and without issue. The two daughters of Thomas Bacon, Mary S. and Sarah W., died, the first, September 5, 1886, and the second, July 3, 1899, both unmarried, leaving no issue. What estate under a proper interpretation of the trust deed do the issue of the two sisters take ? It will be noticed, that from subsequent events, contingencies not foreseen, or not expressly provided for in the express words of the trust, must now be met by a proper interpretation of the deed to meet the facts. The learned auditor holds that the intent of the deed was:
2. That their issue should take in fee.
3. That the grant should be kept within family lines, that is, that the shares of the daughters of Thomas Bacon and their issue should be kept separate and distinct from the shares of the daughters of David Bacon and their issue, and there should be cross remainders within but not without the family lines.
4. That if there were issue within the family lines, that issue should take to the exclusion of everybody else, though their parent had died before her sister who had left no issue.
Having interpreted the deed according to the intent of the grantor, the auditor decides, that the law as announced in Lapsley v. Lapsley, 9 Pa. 130, and cases closely following that decision applies and he makes distribution accordingly.
Although this court does not unanimously concur with all the views expressed by the learned auditor, nevertheless a decided majority agree with him in both his reasoning and conclusions. Anything we could say would be but a mere repetition of what he has so clearly and forcibly expressed. The court below sustained the first exception of Emily W. Bacon and others and the seventh exception of Henry W. Watson to the auditor’s report, both alleging overcharging of collateral inheritance tax, and he modified his report accordingly. The decree of the court below is, therefore, affirmed on the report of the learned auditor for the reasons given by him and all the appeals are dismissed at costs of appellants in each appeal.
