*1 A.2d January W. FRANK dated In re Deed of Trust of Isaac 3, 1927. Apt FRANK,
Appeal and Barbara of Alan I. W. Joan Frank Dane, Deed of Trust. under the beneficiaries Supreme Pennsylvania. Court of
Argued Jan. 1978. July
Decided 1978. *3 Lovett, Pittsburgh, G. for Helwig, appel- Gilbert J. Robert lant in No. 94. Litman, Litman, Harris Specter,
John E. & Grasberger, in No. 95. appellant for Pittsburgh, Rodewald, Buchanan, Ingersoll, Kyle L. McCaskey, Donald Ruslander, Pohl, Berman, Lie- Ruslander, Julian Buerger, & 94 and 95. appellee for Nos. Pittsburgh, Engel, ber & Litman, Litman, Harris Litman, Specter, & M. Roslyn only. in No. appellee for Pittsburgh, Lovett, Reed, Smith, & Robert G. Shaw Helwig, Gilbert J. 95 only. No. appellee for Pittsburgh, McClay, ROBERTS, NIX, J., O’BRIEN, EAGEN, C. and Before LARSEN, JJ. MANDERINO THE COURT
OPINION OF ROBERTS, Justice. irrevocable trust created an
In testator Isaac Frank death, his three for life. At his which received income he Bessie Frank, Robert J. Frank and children, William Anathan, income from trust were to receive that, upon The trust provided their lives. respective trust of the income from the child, “the share death of each to his wife paid surviving shall be fund of the one so dying until If a remarriage. for life or her husband” surviving or death or or surviving spouse, upon child died without spouse, for that child surviving of the remarriage issue, her who were to or benefit of his continued for the termination until per stirpes shares equal receive income in end was to of the trust. The trust child, when both surviving last my “at the decease of have died or son-in-law shall daughters-in-law my *4 this trust corpus the thereupon then and remarried or shares parts three equal be divided into estate shall termination, the trustees upon provided The trust to be into three equal parts principal would divide the or, in children had appointed each of testator’s distributed as or if the power appointment the default of exercise of heirs at law to the child’s surviving, issue child died without of Pennsyl- laws of the Commonwealth under the intestate vania.
120 1927, his daughter trust in
When testator created the married was 41 old. She had years Bessie Frank Anathan and previously Anathan fourteen years Simon more than died in 1976. Testator’s bore him two children. Bessie child, Frank, K. was old in 1927and years second William since K. Frank 1914. had couple married to Florence K. in 1940. years three Frank died Five children. Florence later, Frank, married K. whom Frank by William K. K. K. Frank died in 1964. Mary he had one child. William child, J. old. Testator’s third Robert Frank is now years in and to K. old married Cecilia Frank, was 30 two He and Cecilia had children. Frank five years. That Frank were divorced 1951. and Cecilia Robert J. Frank, who J. married Ruth Louise same Robert year, had a her in 1963. The couple remained his wife until death J. died in 1964.1 son. Robert Frank to his of the trust J. Frank his share appointed Robert de- Alan, K. Frank children, Joan Barbara. William if trust power appointment clined to his exercise but, wife or Mary’s remarriage terminated before his death or remarriage, appointed if the at her death trust ended her appointed his Bessie Frank Anathan surviving issue. time share at the of distribution. living to her issue in Frank Anathan Upon the death Bessie Ap- court for distribution. orphans’ trustees petitioned Dane, Joan Alan Apt Frank pellants, Barbara Frank, auditing J. Frank, argued children of Robert Bessie’s upon intended to terminate that the trust was judge child. Their surviving testator’s last death because she was trust terminating under the position provision was that child, and when both surviving last my “at the decease of or son-in-law shall have died my daughters-in-law to testator’s ., . individuals married remarried . trust be children at the of execution could time had all those individuals or son-in-law. Because daughter- died asserted that the trust ended appellants her Appellees Bessie died. Frank and when Appendix, 1. See infra.
121 Maude, was a daughter daughter-in-law that argued Mary consequently of testator and that the trust could not termi- nate until either or remarried. The auditing judge she died Frank a daughter-in-law determined that K. was orphans’ that therefore the trust had terminated.2 The divided, banc, court en affirmed the determination equally the judge. on this is auditing question appeal whether is a “daughter-in-law” Frank within clause terms the termination of the trust.3 We hold that she is a and affirm. “daughter-in-iaw” 300, 479 Pa. Applegate, Bank v. National
In McDowell 666, again this Court an- 304-305, (1978), 668 A.2d 388 nounced: [trust], of a interpretation involving
“As in
matter
any
ascertained, must
testator,
if it
be
can
intent of
254,
(1978);
920
477 Pa.
383 A.2d
Estate of
prevail.
Sykes,
177,
(1977);
276
Hamilton
Estate, 474
378 A.2d
Pa.
Blough
(1973). To determine
Estate,
495,
Pa.
Testator directed the death of each her pass his or share of would to “his surviving income wife husband,” or her but did not use the surviving possessives in “his” or “her” and the termination clause. “surviving” this wording, appellants From variation in conclude that in to include the former did testator intend provision in-laws. We with the possible agree auditing judge future no intent that such can be derived from difference & wording. testa to reveal also fail
Surrounding circumstances
argue
Appellants
certainty.
with reasonable
tor’s intent
daughter-in-law
a future
to exclude
intended
that testator
standing family circumstances
long
and
ages
“in view of the
of
accepted social
generally
standards
of his children
not envision a
by any
did
divorce
time,”
“probably
that
aof
child after divorce or
remarriage
of his
or the
children
have offered no
Appellants
spouse.”
his own
the death of
regarding “generally
assertions
their
support
evidence
refuse to
time,” and we
of that
standards
social
accepted
as incon
from established
fact far
a
notice of
judicial
take
Commonwealth
knowledge.
common
or a matter
testable
(1943).
574, A.2d
Pa.
Keenan, 347
v.
ex rel. Duff
family
life and
testator’s
Moreover,
circumstances
testator’s
1927, all of
In
conclusion.
contradict appellant’s
married
had been
age
under
were
children
had
Robert J. Frank
been married
no
than 14
longer
years.
err
Thus, appellants
describing the fami-
five
just
years.
standing and established that
long
so
circumstances as
ly
within his childrens’
changes
testator could not “envision”
death,
remarriage.
divorce and
families, including
scheme of distri-
that testator’s
argue
further
Appellants
his grandchildren
interests in
was to vest remainder
bution
time,
thwarted
earliest
which would be
possible
at the
pur-
was
daughter-in-law
view
K. Frank
contrary,
of the
clause. On the
poses
termination
designed
does
to vest
appear
scheme of distribution
remainder
exclusion
grandchildren
interests
*7
in
creates
other interests created
the instrument.
trust
spouses
interests for both
children and their
testator’s
not
one
but does
indicate that
is to have
grandchildren,
preference
argument simply
over the other. Appellants’
their
substitutes as
desire to take remainder
a conclusion
than
time.
interests as of 1976 rather
at a later
intent appears
We cannot conclude that
testator’s
resort to a
We therefore
canon
certainty.
with reasonable
intent.
likely
of construction to
testator’s
supply
a
We
reaffirmed that “where
testator em
recently
a class
his
is to include not
ploys
intent
designation,
him
those known
but all
come into the class
may
to
that
described unless there is some
intent manifested.”
contrary
Bank v.
McDowell National
479
Applegate,
Pa. at 306,
at 669
marks omitted) (bequest
388 A.2d
to “chil
(quotation
children
dren” included
after execution of instru
adopted
accord,
Estate,
52,
369
(1951)
Pa.
125 test, K. Frank was a Mary the actual events Under created the trust. No interest life in when testator being her life because twenty-one past can vest later than her death or upon to vest do so either last interests Thus, construction of the trust’s termination remarriage. Frank as “daughter-in-law” clause K. to include Against of the Rule See presents Perpetuities. no violation Estate, Pearson supra. that, in the alternative because argue
Appellants
three
lines of
independent per stirpital
testator
provided
interests have
distribution,
principal
and all income
lines,
as to those
in two of the
per stirpital
vested
would allow
lines should be terminated. This conclusion
their interests in the
even
principal
to receive
appellants
the trust would continue for the benefit
though
Partial termi
Frank and the children of William K. Frank.
however,
where the
trust,
only
nation of a
is permitted
that the trust
testator has not
an intent
remain
expressed
Here,
Estate,
69,
(1939).
intact.
Pa.
Decree affirmed. own party
APPENDIX the consideration or POMEROY, J., participate did this decision of case. and files a of the Court
EAGEN, J., Opinion in the joins C. opinion. concurring
MANDERINO, J., dissenting opinion. filed a in which MAN- LARSEN, J., dissenting opinion filed DERINO, J., joins. Justice, concurring.
EAGEN, Chief
even
opinion
though
Mr.
Roberts’
there
join
I
Justice
with
Court’s decision in Pearson
be
conflict
this
may
some
Estate,
(1971).
Substantial as cases such transfer in donative to be applied test proper Roberts, now per- I am Justice Like Mr. presented. here to the test as opposed events” the “actual suaded that least prob- poses more sound and test is “possibilities” lems. Justice,
MANDERINO, dissenting. Frank, that the testator, Isaac wrote I dissent. When the last my surviving decease of “at the shall terminate trust son-in-law daughters-in-law my my both child and when intended that the trust remarried,” he or shall have died of his three of the survivor the death terminate at should The natural known to him. spouses children and their to would refer daughters-in-law” my of “both construction sons. to testator’s then married daughters-in-law the two un- construction, including daughters-in-law majority’s testator, and strained. is unnatural known to one-third distributed currently the trust is The income of to J. children, Ralph one-third Frank Anathan’s to Bessie (William’s K. Frank children, Mary and one-third Frank’s terminated, If the trust is considered second spouse). except same K. Mary be the distribution would corpus children and William’s corpus would of the get one-ninth However, hold- majority’s under would get two-ninths. K., until the death of Mary will not terminate ing trust as follows: one-third to distributed when the will be corpus children, Robert Frank’s children, Bessie’s one-third appointment, his power not exercise because William did Thus, if the of William. heirs one third to the intestate real K., very which is a predecease children of William older than Wil- is six since possibility William the children of one or more of son, eldest then liam’s from the trust. whatsoever benefit any will never receive instrument the testator’s intent: This thwarts plan grandchil- to benefit the testator’s definite intent indicates a of the class are members The children of William dren. to postpone did not intend and the testator grandchildren, trust until the death of the the corpus the distribution of to him. unknown daughter-in-law younger a much Justice, LARSEN, dissenting. apply is to determine in this case duty
I dissent. Our is to terminate. the’trust as to when intent of the settlor in the termina- used of the words meaning is the The issue “at the terminate trust would clause, tion providing my both child, and when surviving last my decease or re- shall have died son-in-law and ” daughters-in-law *11 added.) (Emphasis . married . . be intent cannot that the testator’s claims
The majority and, therefore, they certainty reasonable discerned with Frank, clause to include “construe the termination trust, daughter-in-law became a the who, execution of after in that (at 124) and stood relation to him.” testator of in never “stood K. Frank is that of the matter fact considered a can one be Frank. How to Isaac that relation” the to years prior died 15 who had of a man daughter-in-law considered, in Isaac believe that I do not marriage? children, of his of one spouse future 1927, that a possible death, be con- would (Isaac’s) his after remarry who might dissenting the by stated aptly “in-law”. As strued as his Paul McKenna, Judge joined by J. Frank Judge of opinion ‘both’ construe the words below, Zavarella, in the court “[t]o unknown, on known daughters-in-law, as to referring other, would result in a on the hand, the one and son-in-law and one which we be- construction strained and unnatural intended.” lieve testator never illuminating the trust instrument of I find portions other I find can be intent, which Isaac Frank’s in the for quest First, reading a of certainty. with reasonable determined inter- to income that, respect with instrument reveals the wife to his [referring “his the ests, phrase sons’] Isaac used different husband,” is significantly which surviving or her son-in- my my daughters-in-law “both from terminology persons those Isaac to describe law,” employed by phrase of the termination trigger would remarriage or whose death the trust. he of was aware Obviously, distinction. A is logical explanation of distinction the settlor his spouses, they be, intended children’s whoever might to share in the their income of until death or remar- expense but not at the of riage, unduly delaying the vesting in to enjoyment possession gifts grand- over his Thus, clause, referred, children. the termination he albeit name, designated not to six two individuals—his sons and daughters-in-law,” “both and his my daughter and “my son-in-law.”
Second, portions other of the instrument indicate that Isaac was familiar with and sensitive to the limitations on future his gifts grandchildren to imposed by against the rule perpetuities.1 prob- Historically, perpetuities a well-known lem the is classic case the unborn-widow of a child a Leach, or Perpetuities settlor in a Nutshell, testator. Thus, (1938). Har.L.Rev. where the settlor makes a gift life, “to A, trust son then to his wife if surviving, for her then their life, children,” the son could marry created; woman not in at the time the being trust is would, of A gift therefore, the children be void under the common against law rule perpetuities because possibility that their interests would vest until more *12 than 21 years lives-in-being after at the of creation (the future predecease interest son could the “unborn wid- ow” who could survive him more than years). Since Isaac Frank, concerned as he was with against the rule perpetuities, result, would not desire this his reference to “both his daughters-in-law and son-in-law” was a refer- ence to those daughters-in-law the son-in-law existing at the time he created trust.
The this majority argument answers by applying the “actual test, events” our adopted by legislature 1948, in to the gifts to the grandchildren, that, concluding because states, agreement 1. portion: The trust in relevant “At the time when directed, majority this trust would as otherwise cease herein my surviving grandchildren may any elect it continue for term Pennsylvania against as perpetui is not inconsistent with the law of ties ...” was, K. Frank in that Mary have disclosed actual events created, the trust was because fact, a when life-in-being after either death her beyond no could vest interest the trust’s termination or “construction remarriage, as a ‘daughter-in-law’ clause to include K. perpetuities.” (at against of the rule no violation presents is that it analysis with this treats the difficulty 125) grand- of the validity of the determination solely issue as a the issue. We are This is not remainder interest. children’s time he intent at the Frank’s concerned with Isaac here trust, in 1927. created the the settlor agreement,
At the time he executed since it concerned with possibilities, had to be necessarily know, in events that fortune-teller would require analysis use of a hindsight in 1945. The transpire would is of the created interests validity determine present intent, Isaac’s especially no in the search for consequence law rule since, against perpetuities the common clairvoy- would have had to be Thus, the settlor prevailed. future relationships, ant his children’s regards as legislature adopting actions but also as regards (alternatively referred to as the test the “actual events” see” approach). look” or the “wait. “second doctrine create did not intend to Therefore, I that Isaac Frank find which, when the trust grandchildren future interests in his created, was were in violation of the against rule perpetui- ties as it was then in this Commonwealth. applied Conse- “lives- clause to six referred in the termination he quently, his three in-laws then children and in-being,” his three Frank is ex- this existing. interpretation, Under trust, therefore, clause and the cluded from the termination Anathan, Bessie Frank the last of those six terminated when individuals, in 1976. died reasons, I would reverse the Order
For the foregoing *13 not inconsistent proceedings the court and remand below with this Opinion. J., dissenting this
MANDERINO, opinion. joins