Opinion by
Three questions are presented by this appeal:
(1) Has the Orphans’ Court of Philadelphia County jurisdiction of this account and of the questions involved ;
(2) (a) Does the law of New; Jersey or Pennsylvania govern the interpretation of the deed of trust, and (b) What did the settlor mean by “issue”?
We shall discuss these in inverse order.
George Powell Pennington, of Atlantic City, New Jersey, as settlor, and Ella Taylor Pennington, of Atlantic City, New Jersey, as trustеe, and Girard Trust Company,* a Pennsylvania Corporation, as trustee, executed a revocable deed of trust dated March 22, 1983. The trust res consisted of certаin life insurance policies which were payable to the trustees on the death of settlor.
Under the terms of the trust, settlor first provided for the collection of said policies and the investment and reinvestment of the proceeds. He then provided in the second paragraph thereof that the trustees should pay the entire net income periodically to Ella Taylor Pennington for her life.
The third paragraph is the one which gives rise to the present controversy. Testator pertinently provided therein that on the death of his wife the surviving
Settlor рrovided in the fourth paragraph that upon certain conditions
At the time settlor executed this deed of trust and at his death on June 29, 1938, he and his wife and his two sons George and Robert were all living in Atlantic City, New Jеrsey. Settlor’s wife died on August 30, 19J¡.1, a resident of New Jersey. She was survived by both George and Robert; George was still a resident of New Jersey, Robert was not.
On August 5, 1962, Robert became forty-five years of age; he died fourteen months later on December 12, 1963. In the meantime, Robert had withdrawn $5,000 of the principal which was held by the trustee for his benefit, аnd although urged by the trust officer of the Girard Trust Bank to withdraw the entire principal, refused to do so. Equally importantly, on September 11, 1951, Robert and his wife, who then lived in New York, adopted a daughter, Deborah Ann, who is now fifteen years of age and for whose estate the appellant is guardian.
The Girard Trust Bank filed the present account which covered Robert’s share of the trust. The Auditing Judge of the Orphans’ Court of Philadelphia County confirmed the account of Girard Trust Bank and awarded the undistributed balаnce of principal valued at $24,588.26 to Girard Trust Bank, surviving trustee, in trust for the benefit of George under the terms of settlor’s trust. The exceptions of the guardian of Deborah Ann Pennington, who claimed Deborаh took as Robert’s “issue”, were dismissed; the adjudication and supplemental adjudication were confirmed absolutely; and from the decree entered pursuаnt thereto the guardian of Deborah Ann has taken this appeal.
What Law Governs?
It is clear from the above recited facts of the residence of the settlor and his wife and his sons at the time of the execution of the trust, as well as at the death of settlor, and particularly in the light of the provision in the fourth paragraph of the Deed of Trust with respect to the payment of principal under certain
Accord, Restatement, Conflict of Laws, §296, comment a.
The Act of May 4, 1939, P. L. 42, 28 P.S. §291 et seq., pertinently provides: “Section 1. Judicial Notice. —Every Court of this State shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.” The Act then provides ways in which the Court may acquire judicial knowledge of the common law and the statutеs of other states, as well as ways in which these may be proved.
The Orphans’ Court held, and we believe correctly, (1) that the law of New Jersey and of Pennsylvania (prior to the Estates Act of April 24, 1947, P. L. 100) on the question of “issue” was the same, and (2) that the word “issue” when and as used by the Settlor in this trust did not mean or include adopted children of Sеttlor’s children. Wehrhane’s Estate,
In any event, if there is no pertinent decision or statute, or if there is a very substantial doubt about the law of a sister state, the law of a common law sister state -in such situations and at the time in question is presumed to be the same as that of this Commonwealth. Cf. Baughman’s Estate,
Issue
We arе fortified in our construction by the well and long established rule in Pennsylvania that “issue” means “issue of the body” and does not include adopted children or adopted issue unless (a) changed by státute or (b) the language of the instrument clearly indicates a different and contrary intent. Howlett Estate,
We hold that jurisdiction of this trust and this trust accounting was properly acquired and exercised by the Orphans’ Court of Philadelphia County. Under §101 of the Orphans’ Court Aсt of 1951
We note that an account was first filed in the Orphans’ Court of Philadelphia County in 1941. We note further that §309 of the 1951 Act allows any party in interest to pеtition for a change of situs to New Jersey, but since this appellant has failed fco present such a petition she has waived her right to change the jurisdiction оf the Orphans’ Court of Philadelphia County.
As Girard Trust Bank, the Trustee, “resides” in Philadelphia County, the Orphans’ Court of Philadelphia County has jurisdiction of this trust accounting, and its decrеe of distribution, when affirmed by us, is binding on the Trustee and on all the parties claiming under the trust. Compare Sehoble Trust Estate,
Notes
Now Girard Trust Bank.
Italics throughout, ours.
Which never arose.
We note that the Appellate Division of the Supreme Court of New York decided that Wehrhane’s Estate was still the law of New Jersey. See In Matter of Niehol’s Trust,
Stori Appeal, 400 . Pa.. 567,
Act of August 10, 1951, P. L. 1163, as amended, 20 P.S. §2080.101 et seq.
Also venue under §306.