269 Pa. 343 | Pa. | 1921
Opinion by
Kitturah C. Gunnell, by her will, gave her entire estate in trust for her two children for life, and, at their death, directed it to be divided equally among her six nephews, certain of these latter shares being restricted by spend
Following the death of the last survivor of the two children, the testamentary trustee named in the will filed his second account, which was adjudicated by the orphans’ court, and award was made of the principal of the trust estate now in controversy to the trustees.
On the death of the nephew, Harry G. Knight, a substituted trustee for him filed its account, and the orphans’ court awarded to Knight’s administrator the
In Boies’s Est., 177 Pa. 190, testator gave the residue of his estate to his four children in equal shares, “the share going to my son Matthew shall be held in trust” for him, the income to be paid to him for life. In disposing of the question as to what the son Matthew took, the following, most apposite to the case in hand, was said: “We cannot assent to the proposition that the qualifying language employed in relation to ‘the share going’ to Matthew should have the effect of practically revoking or nullifying the preceding absolute gift of that share to him; and, in lieu thereof, giving him an equitable interest therein for life only, nor do we think any such result was intended by the testator. On the contrary, what he doubtless did intend, and all that the language employed by him fairly means, was to protect his son Matthew from the probable consequences of his unfortunate habit and secure to him the use and enjoyment of the income of his share, in quarterly payments during his life, without stripping him of authority to dispose of the corpus, by will or otherwise, to take effect at his death. With that object in view, he directed the share ‘going to’ Matthew to be held in trust by Henry, etc., during Matthew’s natural life. He thus created an active trust for Matthew’s protection and benefit, limited in duration to the period of his natural life, without making any further disposition whatever of the corpus, or otherwise restricting Matthew’s authority to dispose of it as he did.”
The case now before us is equally as strong as those cited, in favor of the view that the testatrix, by her will, intended that her nephew, Harry G. Knight, should take an absolute interest in her residuary estate, if he survived her two children. Now that the trust for him is at an end, by reason of his death, the court below correctly held that the corpus should go to his administrator. The conclusion that the interest taken by Harry G. Knight is an absolute one is further strengthened by a consideration of what would have happened to his share if he had died during the lifetime of the children of testatrix. In that event, his one-sixth share would have immediately vested in the survivors of the nephews; as it would have been absolute then, it is difficult to see why it is not absolute under the terms of the will in all contingencies.
Some point is made that by reason of the language of the auditing judge on the adjudication, in the year 1893, of the second account of the testamentary trustee under the will of Mrs. Gunnell, and because no appeal was taken from that adjudication, the question as to the estate taken by Harry G. Knight is res adjudicata. An examination of the adjudication satisfies us that it did not determine the interest of this nephew, but only decided that, whatever his interest wás, it should be award
The assignments of error are overruled and the decree of distribution is affirmed at cost of appellants.