Patrick's Estate

Opinion by Mr. Justice McCollum, The real question for consideration on the appeal of W. W. Patrick is whether the legacy to Rachel Patrick passed at her death to her surviving brothers and sister, or to them and the children-of her deceased brother and sister. The contention of the appellant is that the surviving brothers and sister take the whole of it, while the appellees claim that the children of the deceased brother and sister take such share of it as their parent would have taken if living. The learned orphans’ court adopted the latter view, and distributed the fund in accordance with it. This fund was created by and held in trust under the will of Ann Patrick, the income of it was paid to Rachel Patrick during her life, and we are now to inquire whether it was distributed in conformity with the provisions of the will by [185] which it and. the trust were established. In a single sentence of her will the testatrix gave legacies to all her children, and in that sentence we find in brackets these words, “ the children or other descendants if any of my said children that may be dead to stand in the place and receive the same amount that their father or mother would have received if living.” 'If this parenthetical and substitutionary clause is restricted to the legacy or share given to her son James, the appeal now under consideration must be sustained; but if it is applicable to the legacy or share bequeathed to her daughter Rachel, the appeal must be dismissed. The clause in question follows the bequests to the sons and precedes the bequests to the daughters, and it is contended by the appellant that from its position in the sentence it must be limited to the bequest to James. In considering this contention we notice, first, that it strikes the substitutionary clause from the sentence and renders it wholly inoperative in the construction of the will. The insertion of this clause was not necessary to enable the testatrix’s grandchildren to take the place of their parents in the distribution of the share bequeathed to James. This position was already secured to them in the disposition of his legacy or share in the event of his dying without issue. Clearly, with or without the substitutionary clause, they could have taken their parent’s proportion of his share under the will. We notice also that in order to harmonize the concluding part of the sentence with the construction contended for by the appellant it is necessary to maintain that the words “ any of my said children,” as used therein, do not include James, although all the testatrix’s children are named as legatees in the preceding part of it. It is worthy of note too, that this construction discriminates indirectly at least against the grandchildren who are without parental assistance and protection. The soundness of a construction which involves such a discrimination, makes one part of the sentence mere surplusage and writes an exception into another part of it, may well be questioned, especially where, as in this case, the testatrix in referring to the children or other descendants of her deceased children appears to have regarded the former as in the place of the latter in respect to the property bequeathed by her. We think therefore that the reasonable and true construction of the will in [186] question is that adopted by the learned orphans’ court. It is a construction which conforms to the obvious intention of the testatrix in disposing of her property, and renders every part of her will intelligible and operative. It makes the parenthetical and substitutionary clause applicable to and explanatory of the whole sentence instead of restricting the same to one of the seven legacies mentioned therein. In the appeal of J. J. Mapel the matters complained of are the allowance to the accountant of commissions on the corpus of the fund and the refusal to surcharge him Avith money received and appropriated by his cotrustees. The allowance of the commissions is resisted on the ground that the accountant blended the trust moneys Avith his own in the business of banking, and it is contended that this action on his part must be regarded under our decisions as a bar to his claim for compensation. But the denial of commissions to a trustee is not an inevitable sequence of his failure to keep a separate account of the trust fund. There may be circumstances affecting his administration of the trust or something in the nature or character of the services rendered by him which Avould make it inequitable to deprive him of all compensation: Ahl’s Appeal, 129 Pa. 27. An executor who has discharged his duties faithfully and with advantage to the estate does not forfeit his commissions by merely keeping on hand larger amounts than the necessities of the estate require, or by placing a wrong construction upon the will, and thereby compelling persons interested to proceed against him to obtain their rights: Myer’s Appeal, 62 Pa. 109; Miller’s Appeal, 8 Atl. R. 864, and Foster v. Denman, 41 N. J. Eq. 47. In this case the trustee honestly supposed that he Avas accountable only to his surviving brother and sister for his administration of the trust. They acquiesced in his use of the trust funds and do not now complain of it. In fact it was a use by which the estate was benefited. The parties who now call the administration of the trust in question did not assert any claim upon the fund for a long time after the death of Rachel Patrick, and their inaction seemed to sanction the trustee’s construction of the will. Under the circumstances of the case Ave think the allowance of commissions Avas proper. To the accountant’s misconstruction of the will and the liti [187] gation and delay arising from if, the language of Mr. Justice Sharswood, in Myer’s Appeal, supra, is applicable. In delivering the opinion of this court he said: “ There was no evidence that we can see of actual fraud. The executors may have acted honestly with the advice of counsel and every presumption is in their favor. The questions which arose upon the construction of the will and the jurisdiction of the court were certainly not so clear that they ought to be held unfaithful to their trust in merely acting upon what they thought and may have been advised was the will of the testator. It would be a hard measure of justice to visit a trustee with such consequences for a mistake of judgment upon points in regard to which lawyers and judges might well differ in opinion.” We agree with the learned orphans’ court that the accountant is not chargeable with the moneys received and held by liis cotrustees. In clear and unmistakable terms the will limits the liability of each trustee to that part of the trust fund which he actually receives. Decree affirmed and appeals dismissed at the cost of the appellants.