28 A.2d 332 | Pa. Super. Ct. | 1942
Argued April 28, 1942. Appellants were not among the beneficiaries named in two decrees of the orphans' court (the subject of these appeals) distributing the corpus of trust funds under the will of Jacob Friday. This testator, by his will, after specific legacies for charitable and religious purposes and the devise of real estate, created a trust of seven-tenths of his residuary estate. Of the fund so established he directed, in section 6b of the will, that $15,000 be set apart for the life use of his daughter Flora A. Ahlberg and a like amount for the use of each of his two other daughters. In addition in section 6c, one-sixth of the income earned on the remainder of the fund was directed to be paid to each of his three daughters. By the same provision of the trust, one-sixth of the income of this residue was made payable to Laura Marie Friday, a granddaughter of testator and the daughter of Emil Friday, a deceased son of testator; one-sixth to the children of Walter E. Friday, another deceased son; the remaining one-sixth of the income, to the children of Victor O. Friday, a third deceased son. Testator had but six children, three daughters, and the three sons all of whom had died before the will was made. Laura Marie Friday married A.E. Kountz and died in 1927 leaving three children, appellants herein.
Section 6d of the will provides that at the death of Flora A. Ahlberg: "the said Trust Fund of Fifteen Thousand Dollars set apart for her, together with the full one-sixth interest in the remainder of said trust fund, shall go to and vest in her children, share and share alike, and the Trustee shall continue to hold, invest and reinvest the same and pay the income thereof to said children in equal shares. When and as said children shall attain the full age of thirty years the *354 corpus of said fund shall be distributed and paid them." (The same provision applied to the distribution of corpus on the death of each of the other two daughters). Flora A. Ahlberg, died on August 21, 1940, a widow, without issue, and in the decrees to which these appeals are directed, the orphans' court distributed the principal sum of $15,000 and one-sixth of the remainder of the corpus of the trust set up for Flora A. Ahlberg, as directed by section 6g of the will, as follows: "In event of death of my daughter, Flora, . . . . . . without surviving issue, the share of said daughter . . . . . . shall go to and vest in my surviving children and in the children of my sons, Walter E. Friday and Victor O. Friday, said children to be entitled to the share their father would have received if living, and to be added by my said trustee to their respective interests in this trust and held and distributed in accordance with the terms thereof." Notwithstanding this plain language of the will which clearly excludes the children of Laura Marie Kountz, appellants contend that they are entitled to share in the distribution of the fund. On the premise that there were six lineal branches of testator's family, appellants argue that the will as a whole does not indicate that testator intended to limit distribution to five of them to the exclusion of the sixth. With this position we cannot agree. From the fact that testator placed his daughters and the children of deceased sons in positions of equality, per stirpes, in the distribution of income earned on the residue of the trust, it does not follow that he intended equality of distribution of the corpus on the death of the life beneficiaries, in the face of plain language which clearly indicates a contrary intent.
The will as a whole does not support the contention that its dominant scheme was equality of distribution per stirpes. The daughters were preferred by the explicit provision of section 6b. The children of the deceased son Victor Friday were given a house and lot *355 in Pittsburgh by the 5th section of the will and thus were treated better than Laura Marie and the children of the son Walter. Laura Marie, the only child of the third deceased son was not made a beneficiary of the trust along with testator's living daughters under section 6b, but she, by section 6c was given a full one-sixth of the income of the residue of the trust with remainder to her children, under 6d, and in this respect was preferred over all other grandchildren of testator. In section 7, which created another trust of three-tenths of the residue, there was ultimate equality of distribution among all grandchildren share and share alike upon termination of the trust. And during the term of the trust, any grandchild was entitled to a preference on compliance with prescribed conditions and educational or occupational requirements.
A construction of a will which works a distinction among heirs is to be avoided where possible (Hood's Estate,
The present will discloses a comprehensive and complete scheme of distribution and in it there is every indication that testator intended distribution in accord with the letter of his explicit directions. He was free to dispose of his estate as he pleased. He chose a plan which worked some inequality among the classes of his lineal descendants but whether there was good reason for his preferences does not affect the question. As gathered from the unambiguous language of section 6g of the will, testator's intent was to exclude appellants, on the death of Flora, from sharing in the corpus of the trust created for her benefit. We must respect the intention of the testator, thus clearly expressed. Any other conclusion would require us to rewrite the will. This we may not do. Smith's Estate,
The decrees are affirmed at the costs of appellants.