96 Pa. Super. 125 | Pa. Super. Ct. | 1929
Argued March 15, 1929. Elmer A. Berg, the appellant, is a grandson of Reverend Andrew Berg, the decedent, and by this appeal complains of the action of the court below in holding that he is not entitled to participate in the distribution of the corpus of a certain trust fund created by his grandfather's will. The testator died February 6, 1884, and was survived by his widow, Eliza Ann Berg, and six children — Justine E., intermarried with Eli McDonnell, Elsie E. (subsequently intermarried with A.H. Lafean), J. Harry, M. Luther, Isaac E., and Mary (Mamie) E. Berg.
The general plan of his will dated October 31, 1882, and probated Feb. 27, 1884, was (a) to bequeath his whole estate to his executor in trust to pay the entire income thereon to his wife "during her natural life;" (b) to make special provisions for each of his two then unmarried daughters, Mamie E. and Elsie E., if they survived their mother, by directing that his executor hold $1,000 for each of them upon the trusts hereinafter described; and (c) to divide, at the death of his widow, the residue of his estate among his six children equally, having regard to the advancements *127 made to each, "so that all and each shall have share and share alike from home, and a strictly equitable distribution of my estate be made among my children." The daughters specially provided for survived their mother who died some time prior to 1895. The portion of the will creating trusts primarily for their benefit reads: "And when she [testator's widow] dies, I direct that my executor keep at interest one thousand dollars for my daughter Mamie E. Berg and one thousand dollars for my daughter Elsie E. Berg; if they survive my wife their mother. These named one thousand dollars for each of my above named daughters shall remain on interest, and the interest annually or semi-annually paid to them so long as they live in single blessedness. But should either of them die or enter into a state of matrimony then the thousand dollars of that one is, in case of her death, to be equally divided among my remaining children, and in case of her marriage, it is to be divided equally among my children her included. And so the same if the other should die or get married." The trust in favor of Elsie E. terminated upon her marriage sometime prior to 1901 and we are now concerned only with the distribution of the corpus of the fund placed in trust for Mamie (Mary) E. Berg.
On August 17, 1895, the predecessor of the Peoples Trust Company of Lancaster, accountant in this proceeding, was appointed trustee of that $1,000 as the successor of the original executor. Mary E. Berg never married and the trust was administered in accordance with the provisions of the will until it was terminated by her death, intestate, on January 2, 1928. Shortly thereafter the trustee filed its account, showing a balance for distribution of $918.51 — of which $900 is corpus — and the present controversy arose over the distribution of this balance. The testator directed that this fund, under the circumstances here present, should "be equally divided among [his] remaining *128 children." One sister, Justine E. McDonnell, and one brother, J. Harry Berg, survived Mary E. Berg; two brothers and one sister had predeceased her. They were M. Luther Berg, who died in 1900, intestate and leaving to survive him a widow, Alice A. Berg, and two children, Elsie R. Berg and Elmer A. Berg, the appellant; Elsie E. (Berg), intermarried with A.H. Lafean, who died in 1901, intestate and leaving her husband but no issue; and Isaac E. Berg, who died in 1903, intestate and leaving a widow, Emma H. Berg, who died in 1927, and two children, Leroy Berg and Randal Berg.
Justine E. McDonnell in 1909 entered a judgment for more than $2,000 against her brother, J. Harry Berg, and attached in the hands of the accountant his interest in this trust fund. Answering the interrogatories, the accountant admitted that it has in its hands the interest of J. Harry Berg in the fund, as the same may be determined upon final distribution. The proceedings in the court below resulted finally in a decree awarding to Justine E. McDonnell the entire fund for distribution — one-half thereof in her own right and the other as an attaching creditor of her brother, J. Harry Berg.
Appellant contends that each of Mary E. Berg's brothers and sisters, including his deceased father, M. Luther Berg, had an interest, in remainder, in the fund upon which she was to receive the income during her life, or until her marriage, which interests vested upon the death of the testator and were not contingent upon surviving Mary E. Berg; and that the fund should therefore have been divided into five equal shares, three of which should have been distributed to the persons entitled to participate in the respective estates of the three deceased children of Andrew Berg. If appellant's contention is sound he would be entitled to one-third of one-fifth of the corpus. A majority of the members of this court are of opinion that *129 his contention should not be sustained. There is in this will no direct or express gift to remaindermen; the gifts to them arise only by implication from the direction that the fund "be equally divided among [testator's] remaining children."
The opinion of the learned president judge of the court below is to the effect that the intention of the testator is not so reasonably clear as to justify a court in ignoring the rule of construction in existence in this state from Moore v. Smith, 9 Watts 403, 407, to Feeney's Estate,
"Where there is no gift but in a direction to pay or transfer or divide among several persons, at a future period, though the future period is annexed to the payment, possession or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide, constitutes the devise or bequest itself; and therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment": Smith on Executory Interests, section 314, cited and approved in Kountz's Estate, No. 1,
It was said in Marshall's Estate,
Considering this will as a whole we are unable to *131
discover anything in it indicating that the enjoyment of the estate over was postponed for any reason other than the protection of the beneficiary for life. We also think there is inherent evidence that the intention of the testator was that those who were to take as remaindermen were such of his children as survived the termination of the trust. The natural meaning of the phrase, "my remaining children," is those remaining or surviving when the event terminating the trust occurred. Manifestly, it was his intent that different persons were to share in the corpus, depending upon the manner of the termination. If it terminated by the marriage of the beneficiary the fund was to be divided among "my children her included;" if by her death, among "my remaining children." It could not be determined who would share until it was known in which way the trust terminated. As events transpired the first trust to terminate was that in favor of Elsie E. Berg, which, as stated, ended with her marriage. One of the results of the adoption of appellant's contention would be to give her surviving husband a share in the fund now for distribution. We find nothing in the will to indicate such intent upon the part of the testator. His primary intent was to benefit his own children rather than their husbands, widows or descendants. Nor can we see that the provision in the second paragraph for the division of the balance of the estate among testator's children share and share alike, subject to the advancements made to each, supports the contention of appellant. That portion of the will dealt only with the balance remaining after the two trust funds had been taken out of the estate. The advancements were to be deducted only from shares in this balance. In Rau's Estate,
Walker's Estate,
The interest of appellant's father in the fund now for distribution was contingent upon the termination of the trust during his lifetime; as it was not terminated during that period, appellant acquired no interest as one of his father's representatives.
The decree of distribution is affirmed at the cost of appellant. *133