136 Pa. 153 | Pennsylvania Orphans' Court, Montgomery County | 1890
Opinion,
This contention hinges on the construction of a clause in the olographic will of Franklin A. Comly, a successful and intelligent business man, who died April 23, 1887, at the age of 73 years, unmarried and without issue.
It appears from the learned auditor’s report that testator’s property was all personal, consisting mainly of stocks and securities of railroad, iron manufacturing and other companies, with which he had been actively identified, amounting to about $150,000. At the time of his decease, and for many years prior thereto, he was president of the North Pennsylvania Railroad Company, and owned stock thereof to the value of $65,000. His next of kin, according to our statute of distributions, were:
1. The issue of a sister, Sarah W. Paxson, who died about two weeks before testator, but more than a year after he made his will, leaving to survive her one son and two widowed daughters.
2. The issue of a brother, Samuel W. Comly, who pre-deceased the testator about three years leaving issue a son, Franklin A. Comly, Jr., who is unmarried and about thirty-two years of age, and a daughter, Emma P., wife of William F. Trexler, aged about thirty-five years and having three children whose ages are fifteen, thirteen, and eleven years, respectively.
3. A brother, Joshua Comly, who at the time of testator’s death was suffering from a disease known to both of them to be incurable, and of which he died about six months thereafter, insolvent, leaving to survive him a widow, Catharine Comly, and one daughter, Mrs. Purviance, the appellants in this case.
After making several specific bequests, the testator in his last will and testament, dated June 27,1885, gave the residue of his estate “ to Peter Hollis and John S. Wise,” in trust as follows:
“ To he held by them for the use and purpose herein named, to wit, the yearly income from said estate to be divided into four equal parts, one fourth part to be paid to my sister, Sarah W. Paxson, one fourth part to be paid to my brother Joshua
The corpus of the trust-estate, less expenses of administration, etc., to wit, $148,437.50, was properly awarded to the trustees, to be held in trust according to the provisions of the will. The net amount of income accrued and unpaid, as found by the auditor, was $6,600.93, one fourth of which, $1,650.23, was awarded to the three children of Mrs. Paxson, and the same sum each to Mrs. Trexler and Franklin A. Comly, Jr. No question is raised as to the disposition thus made of the corpus of the trust, or either of the three shares of accrued income. The remaining one fourth of the income, viz., $1,650.23, was awarded to Mrs. Lucressa R. Righter, on account of debt and costs of attachment-execution, 543 June Term 1887, Common Pleas of Philadelphia, against Joshua Comly. It is conceded by appellant that the attaching creditor is entitled to one fourth of the income which accrued prior to the death of Joshua Comly, less the amount of the note, viz., $606.58, but they deny that she is entitled to any part of the income which accrued after his decease. As to that, their contention is that it belongs to them as beneficiaries of the trust, according to its terms. In other words, they claim that, upon the death of Joshua Comly, the trust as to him ceased, and thereupon they became the designated beneficiaries thereof.
The correctness of that position depends on the intention of the testator as gathered, not from a single clause, but from the four comers of his will. It cannot be doubted that he created an active and valid continuing trust for the management of his residuary estate, the payment of the income thereof to the
The words “ assigns or legal representatives,” following the word “ heirs,” in the will before us, are referable, we think, to the latter word, “ heirs,” as though the testator had directed that the income payable to the deceased beneficiary for and during his life only, should from and after his decease be paid to his heirs and their assigns or legal representatives. In con
We are therefore of opinion that the court erred in awarding one fourth of the income (less $90 to the executors in payment of the note of Joshua Comly, deceased), to the attaching creditor ; that she is entitled only to one fourth of the income which liad accrued prior to the decease of said Joshua Comly, less said sum of $90, to wit, $606.58, and the said appellants are entitled to the residue of the income for distribution.
It is therefore ordered and decreed that so much of the decree as awards $1,560.23 to Bernard Gilpin, attorney for Lucressa R. Righter, on her attachment-execution, etc., be reversed, and
To Bernard Gilpin, atty., etc., ... $ 606 58
“ Catharine A. Comly, widow., . . . 817 88
“ Lizzie C. Pursuance., .... 635 77
Total sum., .... $1,560 23