384 Pa. 550 | Pa. | 1956
Opinion by
The question raised by the appeal is whether or not, in the construction of a will, the interest of a minor great-grandson is vested subject to be divested in the event of his death prior to twenty-one years from the date of the death of his grandmother who predeceased him. A secondary question is also presented: do the trustees or the great-grandchild’s guardian have the duty to apply the minor’s income for his maintenance, education and support during minority? The learned court below ruled that the interest of the minor was vested subject to be divested. It was held that it was the duty of the testamentary trustees, and not that of the guardian, to apply the income during the minority.
Roland L. Taylor, the testator, died June 23, 1943. His will is dated February 10, 1936. The trustees filed their account of the residuary trust estate. At the audit of the account the questions of testamentary con
Testator’s wife predeceased him on February 21, 1938, whereupon his daughters, Marjory and Elisabeth, became the life beneficiaries of the income. Elisabeth still survives and has received and still enjoys her share of income.
Marjory T. Hardwick, the other income life beneficiary, died March 26,1954. :She left surviving two sons, Taylor and Charles, who were living at the death of testator and who are of age. Marjory also left surviving a grandson (testator’s great-grandson), Francis Gordon Lawson, a minor, who was the son of Marjory’s daughter, Anita Taylor Lawson, who had predeceased Marjory, her mother, on January 15, 1953. The great-grandson, Francis, was born after the death of testator;
The testamentary provisions respecting disposition after Marjory’s death of the share on which she had received the income are as follows: “Upon the death of my daughter, Marjory T. Hardwick, my Trustee shall continue to hold the principal of the trust estate and shall collect the income therefrom and pay the share thereof to which my said daughter was entitled in her lifetime, less proper charges, to and among her children, and the issue of deceased children, share and share alike; the issue to take the share their parent would have been entitled to if living. As each child of my said daughter, Marjory T. Hardwick, who is living at the date of mg death, attains the age of twenty-five (25) years, he or she is to receive one-quarter (1/4) of the share'6f the principal represented by the income there
Immediately following the above language, and part of the same item, appear the following words which are the ones in dispute: “Any child of my said daughter, Marjory T. Hardwick, who is born after my death, and the issue of any child of my said daughter who shall predecease my daughter, shall receive a proportionate share of the income to which my said daughter was entitled in her lifetime, for the period of twenty-one (21) years after■ the death of my said daughter, at which time he or she is to receive the share of the principal represented by the income theretofore paid to him or her.” (Emphasis supplied)
It is further provided that in case any of the children of Marjory, or the issue of deceased children, shall die before having received his or her full share of principal, leaving issue, the issue take such share absolutely in equal share, per stirpes. Where no such issue survive, such share passes to the daughter’s children then surviving or their issue, per stirpes.
The court below correctly ruled that each child of his daughter Marjory “who [toas] living at the date of [testators] death” is entitled to a percentage of principal payable at the various ages as provided by the will. In case such child died before attaining any of the respective ages, the unpaid portion of principal was to pass to his or her issue absolutely. No question is raised concerning the validity of such disposition, since such interest is clearly vested subject to being divested.
It is clear, as stated by the court below, that testator visualized the possibility that any devise or bequest to
Francis Gordon Lawson, a minor, whose guardian is the appellant, is a grandson of Marjory, the daughter. The minor’s mother was Anita Taylor Lawson, child of the daughter, who predeceased her. Francis, the minor, was born after testator’s death.
Apparently the basic contention of appellant is that testator should not be held to have intended an inequality among great-grandchildren. He maintains that his interest should not be reduced to a contingent interest, whereas his cousins possess vested interest.
The answer to appellant is clear. Testator unequivocally provided that Marjory’s children living at testators death took a vested interest in remainder. No one has questioned the validity or quality of this interest. However, the interest of any child of the daughter born after testatoTs death, and the issue of any child of the daughter who shall predecease the daughter, possess a different 'status. Such an interest is not vested since testator provided that they should only receive income for twenty-one years, at which time the principal is payable, with a further provision for payment of the principal, in case of death with or without issue before twenty-one years.
Testator provided that the share of any child or issue of deceased grandchild, as indicated above, should
The appellant-minor has not reached his majority. The question is raised as to who shall disburse the income from this fund — the trustees or the guardian. The fourth item of the will reads: “fourth : If any of my grandchildren shall be minors at the time they should be entitled to income hereunder, such income shall be applied by my Trustee towards such minor’s maintenance, education and support, the receipt of a parent or duly appointed guardian to be a sufficient acquittance or discharge to my said Trustee for payments so made.” ' It is contended that since appellant is a great-grandson, and not a grandson, this provision does not apply to appellant-minor and his guardian should receive the income to be expended as the Will directs.
The term “grand children” may or may not embrace great-grandchildren according to the meaning of testator to be ascertained from an examination of the entire will. Standing alone it'is restricted to children’s children, but it may be enlarged by the context so as to em
A trust for maintenance, education and.-support is a valid active trust between the trustee and cestui que trust: Henderson’s Estate, 258 Pa. 510, 102 A. 217; Schuldt v. Reading Trust Co., 270 Pa. 360, 113 A. 545; Falconer’s Estate, 303 Pa. 492, 154 A. 809.
The appeal is dismissed and the decree of distribution affirmed. The costs are to be paid from the corpus of the estata
The foregoing opinion was prepared by the late Justice Allen M. Stearns before his death on February 2S, 1956. It is now adopted and filed as the opinion of the Court.