Handy's Estate

Lamorelle, P. J., on exceptions to first adjudication quoted above, We are all of opinion that the Auditing Judge was undoubtedly correct in his construction of the will of Henry Handy, deceased, so far as it relates to the distribution of the original share of his daughter, Margaret H. Burton, and for the reasons given by him in the adjudication of this account, and also in the adjudication of another account in the same estate audited at the same time. A majority of the court, however, are of opinion that the Auditing Judge erred in not ruling that the fund of $16,000 (as to which the daughter Margaret had but a life estate) became part of the residuary estate, and should therefore, have been awarded, one-third to the trustee under the will of Charles Handy; one-third as a part of Margaret’s trust estate to her daughter, Margaret B. Waterall, according to the adjudication upon her trust above set forth; and one-third as a part of Julia’s trust estate, according to the distribution to be made thereof in the adjudication of another account in the same estate audited at the same time. The exceptions filed on behalf of the trustee under the will of Charles Handy, deceased, are sustained; those filed by the trustees under the will of Margaret H. Burton, deceased, and by the trustees of the University of Pennsylvania are dismissed, except so far as the former refer to the fund of $16,000, which exceptions are sustained, and the adjudication, thus modified, is confirmed absolutely. Counsel will prepare a schedule of distribution, in duplicate, in accordance with this opinion, and present same to the Auditing Judge for his approval and annexation to the adjudication. Van Dusen, J., dissents as to the disposition of the $16,000 fund only. Lamorelle, P. J., on exceptions to second adjudication quoted above, March 11, 1929. — The court being evenly divided in opinion, the exceptions are to be dismissed. [8] Those of us who agree with the Auditing Judge are content to rest on his rulings, for the reasons given by him in his analysis of the clauses of the will, marked for convenience (A), (B) and (C). As the dissenting opinion sets forth all facts, we deem it unnecessary to do more than briefly comment. In seeking testator’s purpose, we need but insert the words “during the continuance of the trust” in clause (A) — and from the context this phrase is necessarily understood — to make clauses (A) and (B) harmonize. (A) would then read, “and if, during the continuance of the trust, either of them should die without issue, her share of income to be paid to my son, Charles Handy, and to my said daughter or stepdaughter — whichever may survive— in equal parts, and to the survivor of them; and the principal of the said two-thirds of said residue as said survivor may by any last will and testament direct, and in default of any such direction, then to the heirs-at-law of said survivor, share and share alike.” One daughter, Julia, died during the continuance of the trust without issue, and thereupon her surviving half-sister, Margaret, along with the latter’s brother, Charles, succeeded to that share of income, and when Charles died in 1923, all income became Margaret’s. Thus, Margaret had absolute control of the disposition of the corpus, in event that she died without issue; but in fact she died leaving issue her surviving, one daughter, and thus clause (B) became effective. It reads: “If either my daughter Margaret J. Handy or my stepdaughter Julia J. Handy should die leaving issue, then in trust to hold the share of the parent during the minority of such issue and to pay the income for the support and benefit thereof, and to pay to such issue on reaching the age of twenty-one years the share of the parent in the principal sum and in all accruing interest of said residue. ...” At the time of Margaret’s death, what was her share? The answer is obvious; all of the trust fund as to which she was then receiving the income, to wit, her original shares, plus that of her stepsister. That there could be no doubt as to testator’s intention, he defined in terms the share of the survivor of his two daughters which the issue of the survivor would take, as “the share of the parent in the principal sum and in all accruing interest of said residue. . . .” The “accruing interest” of the residue could, to our mind, mean nothing other than what had actually accrued because of Julia’s prior decease. In short, Margaret’s power of appointment was dependent on neither her nor Julia having issue. If either had issue, the power to appoint became inoperative, and what passed to the issue was what would have gone under the power — the shares of the two half-sisters in the residuary estate. All exceptions are accordingly dismissed and the adjudication is confirmed absolutely.