Onderdonk's Estate

Gest, J., John P. Onderdonk died on March 17, 1917, leaving two brothers, Charles and George, and three sisters, Eudora, Mary and Cynthia. By his will, dated May 20, 1887, he gave his residuary estate to his brothers and sisters, but directed that the shares of George and his sisters should be held in trust until the expiration of twenty-one years from the death of the survivor of them, the income to be paid, share and share alike, among George and his sisters, and in case of the death of either (any) of them leaving issue, the issue to be paid the share of income their parents would have taken if living; and in case of the death of either (any) of them without leaving issue or descendants him or her surviving (or leaving such that shall die before the period for the termination of the trust), the testator directed that the shares of principal, the income of which had been paid to her or them, should be divided equally among all the brothers and sisters then living and the issue of any that might be deceased, the issue taking their parents’ share; the shares of George or his sisters or the descendants of either (any) of them that may be deceased to continue to be held in trust in aggregation with the other shares held for them upon the same trusts and with the same powers. And at the expiration of the period of twenty-one years after the death of the last survivor of them, the principal was directed to be divided among the descendants then living of George and his sisters per stirpes. The construction of the will, however, is greatly complicated by the subsequent codicils, which, so far as they affect the questions now presented, will be stated as follows: By codicil No. 1, dated Jan. 4, 1893, the testator directed that, upon the decease of Mary, one-half of her share should be divided among his surviving brothers and sisters, to be held in trust “the same as the original division of shares and subject to the same conditions,” and that the remaining one-half of said shares should go to her child (P. Percy Vail), to be held in trust as provided in' the will, giving as the reason the fact that P. Percy Vail has money to come to him from other sources. By codicil No. 2, dated Dec. 7, 1909, the testator revoked and canceled the share given to George V. Onderdonk, and bequeathed to his executor $15,000 in trust under all the terms and conditions set forth in the will, to pay the income to George during his life, and on his death directed the said $15,000 to become part of the residuary estate. By codicil No. 3, dated Nov. 10, 1914, the testator revoked and canceled the share of Charles and bequeathed the same to his executor in trust for Charles, [685] under and subject to all the terms and conditions contained in the will relative to George and his sisters, in trust to pay the income to Charles during his life, and on his death the testator directed the trustee, “for reasons best known to myself and uninfluenced by any one,” to hold $5000 in trust, to pay the income to Charles S. Onderdonk, Jr., and'on his death to divide the said $5000 among any children he might leave surviving, and should he leave no children surviving, “then the said $5000 shall be paid to my residuary estate.” And he provided similar trusts of $5000 each for Laura E. Onderdonk (who, however, predeceased the testator without issue) and for Margaret O. Hickey, the said Charles, Jr., Laura and Margaret being children of Charles, the testator’s brother. After providing for these trusts, the testator directed “the balance of said share held in trust for my brother, Charles S. Onderdonk, I order and direct my said trustee to pay over to my residuary estate.” In codicil No. 2 the testator ratified and confirmed his will and codicil No. 1 in every particular, except where the same thereby revoked, canceled or altered it, and in codicil No. 3 he ratified, confirmed and republished his will and the two prior codicils in every particular, except where the same were thereby revoked, canceled or altered. 'At the audit of the executors’ account, it was claimed on behalf of Charles that the effect of codicil No. 2 was to cause an intestacy as to the remainder of George’s share after the reservation of $15,000 in trust for him, but the auditing judge (Gest, J.) held that this remainder went to augment the residue given in trust for the other beneficiaries, and which was awarded, one-fourth in trust for Charles, one-fourth in trust for Mary and one-half in trust for Eudora and Cynthia. Exceptions were filed to this adjudication by Charles, but they were subsequently withdrawn. After this, Eudora died without issue on July 3, 1923, and an account was filed by the trustee of the estate held in trust for Eudora and Cynthia. The auditing judge (Gest, J.) held that the trust continued, but that the income, formerly payable to Eudora and released by her death, became payable to Charles, George, Mary and Cynthia, the awards being made to the trustee in trust for those persons. Exceptions were filed by Charles, Cynthia and Mary to this adjudication, on the ground that George should have been excluded and the released income should have been awarded in trust for Charles, Cynthia and Mary. These exceptions were dismissed by the court in banc, opinion by Henderson, J. Charles subsequently died on March 21, 1924, leaving two children, Charles S. Onderdonk, Jr., and Margaret O. Hickey, and Mary, sister of the testator, died July 3, 1924, leaving one child, F. Percy Vail. The trustee has filed its accounts of the estates held in trust for them as aforesaid. By the adjudication ¡of the account of the estate held in trust for Charles there was awarded $5000 in trust for his son Charles and $5000 in trust for his daughter, Margaret O. Hickey, and the residue was awarded to the trustee in trust, the income being awarded to the trustee in trust to pay one-fourth to George, one-fourth to Cynthia, one-fourth to Mary and one-fourth to the children of Charles. To this adjudication exceptions have been filed; first, by the two children of Charles, who claim that they are entitled to the entire income; second, by Cynthia, who claims that Charles’s children should be excluded and that she is entitled to one-third instead of one-fourth; and, third, by F. Percy Vail, son of Mary, who claims also that Charles’s children should be excluded, and, further, that the auditing judge should have defined with more exactness the share which he should take. [686] Mary O. Vail died on May 5, 1924, leaving issue one son, F. Percy Vail, and the trustee filed its account of the estate held in trust for her. The auditing judge in his adjudication awarded one-half of the estate in trust for F. Percy Vail for life, and this award is admittedly correct. As to the other one-half, the auditing judge held that the words of the first codicil, “my surviving brothers and sisters,” meant those who survived Mary O. Vail and whose shares were then held in trust for them; that is, Cynthia O. Hunt and George V. Onderdonk. To this adjudication exceptions were filed; first, by F. Percy Vail, claiming that he is entitled to one-third of the income of this one-half; and, second, by Charles S. Onderdonk, Jr., and Margaret 0. Hickey, the two surviving children of Charles S. Onderdonk, claiming that they are entitled to one-third of said income. The exceptions in both cases were argued with great ability by the learned counsel for the parties. We shall now proceed to dispose of them seriatim. The trust {or Charles S. Onderdonk. The will as originally written is clear enough, but the testamentary intention is rendered very obscure by the codicil, in connection with which it must be construed, and our careful study convinces us that no conclusion can be arrived at which is entirely free from doubt. The auditing judge ruled that the income released by the death of Charles S. Onderdonk, over and above that required by reason of the gift of the two legacies given in trust for- the benefit of his two children, should be divided equally among the other four shares of the estate, and this he held upon the ground that the children of Charles are not to be disinherited by implication, and that, while it is possible the testator intended otherwise, yet, as he said in so many words that the income was to become a part of the residuary estate, it must be distributed as such; that is, among the four shares, viz., those given in trust for George, Cynthia, Mary and Charles, Eudora having died without issue to represent her share. While there is much to be said in support of this theory, and much was ably said by the learned counsel for the children of Charles, we are, on the whole, of the opinion that the testator intended to exclude them. Let us suppose that the testator, in writing codicil No. 3, had intended to place the share of Charles in trust for' his life, and that after his death his children should have the income, which is what they now contend they are entitled to, he need only have directed that Charles’s share should be held in trust for his benefit “under and subject to all the terms and conditions set forth in the trusts contained in my will relative to my sisters and George V. Onderdonk,” without more. But in this third codicil, which gives rise to the question, the testator makes a fundamental change in the provisions of his will, and the devolution of his estate on the death of Charles, when he there directed that the trusts of $5000 each be established for Charles’s children. This change he says that he makes for “reasons best known to himself and uninfluenced by any one.” Had he stated his reasons, our task of construction might have been easier. As it is, we can only infer them from the circumstances of the case, and it is the fact that the three children of Charles mentioned in the will, for whom he -specially provided therein, were Charles’s children by his first wife, from whom he had been divorced, and for whom he provided in terms of trust radically different from those relating to the general residuary estate. At any rate, he states what these children shall receive, nominatim, and there is nothing from which it can be inferred that he intended to give them any more. In addition to this, the testator, in this codicil No. 3, provided that Charles’s share shall be held in trust, subject to all the terms [687] and conditions set forth in the trust contained in his will relative to his sisters and George V. Onderdonk; and we think that the special mention of his sisters and his brother George is indicative of an intention to exclude the children of Charles from any participation in the income which is the subject of these exceptions. We cannot believe that the testator intended these children to take the income from the special trusts of $5000 each and also the income of the residue from which these trust estates were carved, and our conclusion is supported by Crock’s Estate, 231 Pa. 271, a very similar case. Upon the whole, the exceptions of Charles S. Onderdonk, Jr., and Margaret O. Hickey are dismissed, and those filed by Cynthia 0. Hunt and F. Percy Vail are sustained. A schedule of distribution in accordance with this opinion will be submitted to the auditing judge for his approval. Trust for Mary O. Vail. The exceptions filed in this case relate, as above stated, to the construction given by the auditing judge to the words “my surviving brothers and sisters” in the first codicil to the will. Language such as this in a will almost invariably gives rise to question, and the meaning in which the testator used them can only be ascertained, if at all, by a study of the whole will, or the will and its alteration by a codicil, which is the case here. We are of opinion that the auditing judge was correct in his disposition of this question, and, for the reasons which he has given, we dismiss the exceptions filed by the children of Charles and by F. Percy Vail, and the adjudication is confirmed absolutely.