62 A.2d 763 | Pa. | 1948
These appeals are from a decree entered by the Orphans' Court of Allegheny County in the estate of Eliza Thaw Edwards, deceased.
Testatrix died May 13, 1912, leaving a will and two codicils, all holographic. The provisions here material occur on the first and fourth pages of the will and in the second codicil. They are as follows: on page 1, "There is to be no immediate division of my estate, but each one of my four daughters shall share equally of its income after certain bequests are made"; on page 4, "When estate is divided, two years after my death, all Bonds, Stocks, Money in Banks etc. shall be divided share and share alike, except the part in Trust [referring to a fund over which testatrix had power of appointment under the will of her father, William Thaw, deceased] . . . The part of estate now in Trust shall be kept where it now is, or in some Trust approved by the two first executors . . . When the life interest of the present heirs expires, that which is in Trust shall go to my grandchildren"; *506 in the second codicil, "And on the 4th page where it directs divisions of estate accumulated from income during my life time, I wish half of that added to the present amount in Trust, each daughter to have equal share of income from same, and at the death of each, her share shall continue in Trust for my grandchildren."
Surviving testatrix were four daughters, Burd B. E. Dickson, wife of Charles E. Dickson, Katherine M. Edwards, Eliza T. Edwards and Mary L. Edwards, and five grandchildren, the children of Burd B. E. and Charles E. Dickson. One of the five grandchildren, Eliza T. Dickson, a minor, died on April 16, 1914, intestate, unmarried and without issue, and three of testatrix's daughters, Burd B. E. Dickson, Eliza T. Edwards and Mary L. Edwards have since died. No additional grandchildren of testatrix were born after her death.
At the audit of the fourth account of the trustees under testatrix's will, occasioned by the death of Charles E. Dickson, one of the co-trustees, on June 15, 1945, and the death of Mary L. Edwards, one of testatrix's daughters, on November 24, 1945, Peoples-Pittsburgh Trust Company (now Peoples First National Bank and Trust Company), executor and trustee under Dickson's will, claimed one-tenth of the balance shown by the account, contending that the gift in remainder vested in the grandchildren, as a class, including Eliza T. Dickson, the deceased grandchild; that upon her death, Burd B. E. Dickson and Charles E. Dickson, her parents and heirs at law, became the owners of her one-fifth remainder interest; and that upon the death of his wife Charles E. Dickson became the sole owner as surviving tenant by the entirety. This was contested by the four surviving grandchildren, George E. Dickson, T. Bruce Dickson, Burd D. Stevenson and Mary Dickson Varker, who contended that the remainders are contingent upon the remaindermen being in existence either two years after testatrix's death, or at the death of the first of testatrix's daughters to die, or at the successive deaths of testatrix's *507 daughters. The auditing judge sustained the claim and awarded the balance, amounting to $740,389.32, one-half to the trustees for Katherine M. Edwards under the will, one-tenth to each of the four surviving grandchildren, and one-tenth to the trustee under the will of Charles E. Dickson. Exceptions filed by the surviving grandchildren were dismissed and these appeals followed.
This is the fourth occasion this Court has had to consider the will of Eliza Thaw Edwards, and the second occasion involving the above-quoted provisions.1 Were we not bound by what has already been decided, we would be obliged to conclude that the legal effect of the language used by testatrix was the limitation of a vested remainder to the grandchildren in esse at her death, as a class, subject to open and let in after-born grandchildren. See Bradley's Estate,
Likewise without merit is the contention of appellants that the executor and trustee of Charles E. Dickson cannot assert the claim because Dickson did not assert it in his lifetime, during his thirty-year administration as one of the co-trustees, or because Dickson, as one of the trustees, participated in the preparation of the second and third accounts, occasioned by the deaths of Eliza Thaw Edwards and Burd B. E. Dickson, in 1938 and 1944, on which decrees were entered distributing principal to the four surviving grandchildren in accordance with an agreement executed by the surviving life tenants on April 1, 1938. Manifestly Dickson's failure to claim on the prior accounts would not preclude him, and consequently does not now bar his executor and trustee, from claiming against the distinct fund for distribution on this fourth account. Until the matter has been finally determined by an appellate court, the orphans' court, on *509
a subsequent account involving a distinct and different fund, may always correct an error in the adjudication on a prior account: Kline's Appeal,
While we have defined the quality of the remainders, we are not informed why inequalities in prior distributions are not corrected in the present distribution: Reed's Estate, supra. See also: Albertson's Estate (No. 2), supra. This question is not now before us and we do not pass upon it.
The assignments of error are overruled, the decree is affirmed, the costs of each appeal to be paid by the appellant therein.
