507 A.2d 853 | Pa. Super. Ct. | 1986
This is an appeal from an order of distribution of trust principal. The trust in question was created by an irrevocable deed of trust in 1917. Settlor provided therein that the trustee accumulate income until each of her children reached the age of twenty-one. At that time, the child would receive one equal share of such accumulated income. Thereafter the child would receive the net income on his or her share of the principal for life. Upon the death of the child,
... the principal of the said share shall be paid over absolutely to the issue of such deceased child, being the lineal descendants of ... [Settlor] ... in equal shares absolutely.1
When Settlor’s son, Samuel Wynne Mills died, the trustee proposed to pay one-third of his share to each of his children, Samuel W. Mills, Jr., Barbara K. Mills and Alexandra Devine. A guardian ad litem was appointed to represent the two minor children of Alexandra Devine. The guardian argued that the language of the deed required a per capita distribution so that the five parties, Settlor’s three grandchildren and two greatgrandchildren, would each receive one-fifth of the share of the principal. The auditing judge agreed with the per capita distribution and the court en banc affirmed. Samuel W. Mills, Jr. and Barbara K. Mills appealed. Finding no error in the determination, we affirm.
Appellant argues that the words “in equal shares absolutely” do not require an equal distribution among all beneficiaries, i.e., a per capita distribution, but rather an equal distribution among beneficiaries of the same genera
Appellants argue, however, that the general scheme of distribution of the deed of trust provides sufficient support for an intent to distribute all funds per stirpes. The only stirpital distribution in the deed is found in the gift over to surviving children and issue of deceased children of any share of a child who dies before the age of twenty-one without leaving issue. In that instance, Settlor clearly stated that the issue of deceased children were “to take per stirpes and not per capita absolutely.” Para. Second (c). We must therefore agree with the court en banc’s quotation from Bache Trust, 43 Pa.D. & C.2d 780 (1968):
Since it is obvious that [Settlor] knew how to make a stirpital gift when he so intended, we must assume that he intended this gift to be per capita and thus give effect to the meaning of the plain language used by him.
Order affirmed.
. Settlor further provided for the payment of income and principal shares in the event that a child died prior to attaining the age of twenty-one as follows: if a deceased child left issue, the child’s share was to be paid to the child’s issue; if a child died without issue, that child’s share was to be paid to Settlor’s surviving children and the issue of deceased children per stirpes.