Silverman Trust

Bolger, J., The exceptions, which are the subject of this review, are to the readjudication of the learned auditing judge. Following the argument on exceptions to the first adjudication, it appeared that certain questions had not been raised before the auditing judge with the result that the case was returned to him at his request for further consideration. On December 2, 1926, at Philadelphia, Abraham Silverman, now deceased, created two identical irrevocable deeds of trust in both of which he named his wife, Helen, trustee of the proceeds of two insurance policies upon his life. He died at Philadelphia January 16, 1927. He directed the income therefrom should be paid in equal shares to their two children, Malcolm and Audrey, for their respective lives and that one half of the principal be paid to Malcolm at the age of 30 years. As the terms of the two trusts were identical, they were from the start consolidated and treated as one. Malcolm attained the age of 30 years in 1952 and received one half of the principal. The trust continued for the benefit of Audrey, who died intestate in New York City, October 12, 1955, survived only by her mother, her husband and her brother, Malcolm. The trust has terminated and the principal is now payable “to the heirs of the said Audrey Silverman surviving her”. In 1931 the settlor’s wife and children changed their domicile to New York. From the inception of the trust, the trustee has employed The Pennsylvania Company for Insurances on Lives and Granting Annuities, now The First Pennsylvania Banking and Trust Company, as her agent and custodian of the funds which consist presently of stocks, bonds and mortgages on Pennsylvania real estate. Audrey’s mother, now Helen S. Rosenfield, claims half of the funds. Audrey’s surviving husband, Rich — 199 — ard Stanfield, claims not only half of the funds, but a priority of the $10,000 allowance under section 2' of the Pennsylvania Intestate Act of April 24, 1947, P. L. 80, 20 PS §1.2. The learned auditing judge ruled that the membership of the class of “heirs” is to be determined by the law of Pennsylvania. He, however, awarded one half of the estate each to the mother and to the surviving husband, dismissing the latter’s claim for $10,000 allowance on the ground that the Intestate Act (without designating which one) was only applicable for the purpose of determining the identity of the heirs. At the argument on exceptions to the first adjudication, the auditing judge orally extended his application of the act to the determination of the fractional shares, but not the quantum of them. We are now passing upon the surviving husband’s exceptions to these rulings and the resultant award. There is no dispute as to the jurisdiction of this court to audit this account and to make the proper awards: Schoble Trust, 346 Pa. 318. The assets are here and the proceeding is in rem. The trusts are seated here, the account is before us and all parties in interest appeared and are represented. At the audit, the mother-claimant maintained that the law of New York where the life tenant died was determinative of her “heirs”. The auditing judge rejected this contention and held that the law of Pennsylvania applies. Although no exceptions were filed to this ruling and the point was not argued at the bar on exceptions, we observe that the attorney for the mother-claimant attempts to reserve this point in his brief. Not only do we conclude that we have the right to treat this point as having been abandoned by the mother-exceptant’s attorney failing to file exceptions to this ruling, but we are also satisfied that the learned auditing judge was correct. In Car — 200 — ter’s Estate, 20 D. & C. 91, this court held that where the testator, a resident of Pennsylvania, leaves personalty in trust for the benefit of his daughter, then a resident of Pennsylvania, for life with remainder to her heirs and the life tenant, after testator’s death, removes to another State, of which she is a resident at the time of her death, her heirs are to be determined by the law of Pennsylvania, pursuant to the testator’s presumed intent. Judge Gest, in writing the opinion, stated at page 92: “Clearly we think he meant all those persons on whom by the law of his own State the inheritance would be cast upon his daughter’s death. He may indeed be presumed to know the law of his home State, and even if that presumption be regarded as strained, he certainly may safely be presumed not to know the laws of 47 other States. If, when he made his will, his daughter had been domiciled in another State or country, there might be some room for argument ... or if there were some special provision in the will to show that the testator had the law of another jurisdiction in his mind that law might govern . . .”. There is nothing in the instant deeds which would indicate that the settlor had the law of another jurisdiction in his mind when he provided this remainder' over to his daughter’s “heirs” surviving her. See also Masonic Mutual Assn., v. Jones, 154 Pa. 107. In the determination of who are to be regarded as the heirs of Audrey, the life tenant, we must ascertain the settlor’s intention from a perusal of all of the language of both deeds: Cannistra Estate, 384 Pa. 605. Since a living person does not have heirs and the gift over is in remainder to Audrey’s “heirs surviving her”, these heirs are to be determined as of the date of Audrey’s death: Barnard Estate, 351 — 201 — Pa. 313; Love Estate, 362 Pa. 105. See also Hunter’s Pennsylvania Orphans’ Court Commonplace Book, vol. II; “Vested and Contingent Interests”, sec. 12(6), page 1356, and cases therein cited. In Love Estate, supra, Judge Hunter stated (page 107) : “The direction of this will is that the heirs be ‘living at that time’, the death of the life tenant. This we are persuaded indicates a gift to a class ascertained at the death of the life tenant, composed of those who answer the description at that time. A contingent gift to a ‘then living’ class of ‘heirs’, ‘issue’, ‘descendants’, or any other class subject to fluctuation, requires the postponement of both vesting and membership.” In the instant case, solely for emphasis, the gift over here is “to the heirs of the said Audrey Silver-man surviving her”. It is agreed that the deeds were expertly drawn. It is clear that their primary purpose was to benefit the settlor’s children, their mother being only the trustee. Undoubtedly, the latter was otherwise provided for. At least she is not to be regarded as one of the primary objects of the settlor’s bounty in these instruments. There is nothing in the deeds to indicate that the settlor did not anticipate that his daughter would marry; that if she did, her husband would share in these trusts to the full extent prescribed by the Intestate Law existing at the time of her death. Had he intended otherwise, he would have provided either that the remainders should go over to his own heirs or beneficiaries or he would have given the life tenant a power of appointment over the remainders. Further, had he intended to limit the share of any possible husband of Audrey’s or of any other heir of hers upon her death, he could have done so. See Eby’s Appeal, 84 Pa. 241, , 246. There — 202 — is not even a direction in these deeds to distribute equally among “heirs” although the readjudication does exactly that. Starting with Patterson v. Hawthorn, 12 S. & R. 112 (1824), the use of the word “heirs” has been held to be the heirs as ascertained by the statutes of distribution unless a contrary intention is indicated by the conveying instrument: Eby’s Appeal, supra; McKee’s Appeal, 104 Pa. 571 (1883) ; Comly Estate, 136 Pa. 153; Ashton’s Estate, 134 Pa. 390; Wunder’s Estate, 270 Pa. 281; Simpson’s Estate, 304 Pa. 396; Golden’s Estate, 320 Pa. 4; Barnard Estate, 351 Pa. 313; Bowen’s Estate, 139 Pa. Superior Ct. 523 (1940). The sole question here is the surviving husband’s claim to the allowance of $10,000. The Intestate Act of April 24, 1947, P. L. 80, sec. 1, 20 PS §1, provides: “The real and personal estate of a decedent, whether male or female, subject to payment of debts and charges, and not disposed of by will or otherwise, shall descend as hereinafter provided.” Section 2. “The surviving spouse shall be entitled to the following share or shares: (3) No issue. The first ten thousand dollars in value and one-half of the balance of the estate, if the decedent is survived by no issue.” In his original adjudication it appears that the learned auditing judge inclined to the view that the foregoing act must be read in conjunction with section 14(1) of the Estates Act of April 24, 1947, P. L. 100, 20 PS §301.14. He concluded that when these sections are read together, the $10,000 allowance provided under the Intestate Act, supra, is repealed by the Estates Act, supra. Section 14(1) of that act reads as follows: “Section 14. Rules of Interpretation. — In the absence of a contrary intent appearing therein, convey — 203 — anees shall be construed, as to real and personal estate, in accordance with the following rules: “(1) MEANING OF ‘HEIRS’ AND ‘NEXT OF KIN,’ ETC; TIME OF ASCERTAINING CLASS. A conveyance of real or personal property, whether directly or in trust, to the conveyor’s or another designated person’s ‘heirs’ or ‘next of kin’ or ‘relatives’ or ‘family’ or to ‘the persons thereunto entitled under the intestate laws,’ or to persons described by words of similar import, shall mean those persons, including the spouse, who would take under the intestate laws if such conveyor or other designated person were to die intestate at the time when such class is to be ascertained, a resident of the Commonwealth, and owning the property so conveyed: Provided, That the share of a spouse other than the spouse of the conveyor, shall not include the ten thousand dollar allowance under the intestate laws. The time when such class is to be ascertained shall be when the conveyance to the class is to take effect in enjoyment.” In the present case there is no need to apply a statutory rule of interpretation, since this settlor clearly defined the remaindermen as “. . . the heirs of the said Audrey Silverman surviving her”. Also, when we pursue the study to other sections of this act, we come to section 21 which reads: “This act shall take effect on the first day of January, one thousand nine hundred forty-eight, and, except as set forth in section 3 hereof [dealing exclusively with releases of powers], shall apply only to conveyances effective on or after that day. As to conveyances effective before that day, the existing laws shall remain in full force and effect.” In section 1 of the act we find under “Definitions” the following: “ ‘Conveyances’ means an act by which it is intended to create an interest in real or personal prop — 204 — erty whether the act is intended to have inter vivos or testamentary operation.” Thus the very terms of sections 21 and 1 limit the application of section 14(1) of this act to conveyances, whether by deeds or wills, effective after July 1, 1948, the effective date of the act. Therefore, this act in no way affects the distribution of these funds under the Intestate Act enacted the same day. And finally, it should be noted that this court has considered the application of the Estates Act to a conveyance made prior to the effective date of the act and has determined that the act cannot apply: McKean Estate, 366 Pa. 192, affirming 71 D. & C. 429. Thomas McKean executed a revocable deed of trust dated March 14, 1947. He died July 30, 1949. Under section 11 of the Estates Act, the widow claimed that the deed of trust constituted a testamentary disposition and was void with reference to her election to take against the will. The court refused to apply section 11 of the Estates Act retrospectively. Judge Hunter stated in the opinion of this court, at page 435: “Certainly, the Estates Act did not contemplate that a conveyance has more than one effective date.” There the deed of trust like the present one was not testamentary and the sole conveyance was made on the date when the settlor transferred the assets to the trustee. In Wetherill’s Estate, 4 D. & C. 667 (1924), this court held: “The word ‘heirs’ is a technical word when used in connection with real estate, but when used in connection with personal estate, it means those who would take under the statute of distributions, unless there is something in the context to indicate a contrary intention: Eby’s Appeal, 84 Pa. 241; Ashton’s Estate, 134 Pa. 390; West’s Estate, 214 Pa. 35.” — 205 — We then awarded to the surviving spouse of a deceased life tenant $5,000 plus one half of the balance of the remainder of the estate. The spouse and col-laterals were “the natural heirs”. This follows the principle enunciated in Hoch’s Estate, 154 Pa. 417, as follows: “The Intestate Laws must control questions of distribution arising upon the settlement of estates of testators as well as intestates, unless the testator has clearly provided a different mode in his will.” In his supplemental adjudication, the learned auditing judge questions the authority of these cases as well as of Simpson’s Estate, supra, and Bowen’s Estate, supra, in all of which the principle has been followed. He states in effect that the quantum of the heir is not the same as it would be were this the property of the deceased life tenant and not the estate of the settlor. If it is correct to so limit application of the statute of distributions in determining the part or share which the heir shall receive, then the result in all cases where gifts in remainder have been made by will or deed to the heirs of persons other than testators or settlors would be a per capita distribution regardless of the proximity of relationship to the ancestor whose heirs are thus determined. There can be no substantive or substanial difference between the allowance of $10,000 to a spouse where no children survive and the stirpital distribution among children and issue of a deceased child of a common ancestor. The quantum, whether fractional or fractional plus an allowance, has always been applied among the heirs not only of testators, but of third persons. The fact that the question with reference to the allowance was not litigated in Bowen’s Estate, supra, and Simpson’s Estate, supra, is not the point at issue in this case. .It is true that in the two cited cases — 206 — the courts decided merely that the surviving spouses of deceased legatees were entitled to share, but the records clearly indicate that those shares were to include the statutory allowance. It is as clear as that night follows day. The principle of law that statutes of distribution are followed not only to determine the identity of heirs, but also to determine the share of each has always been applied and followed. See cases cited in Hunter’s Pennsylvania Orphans’ Court Commonplace Book, vol. II, page 1449. No case has been cited nor has our research disclosed any case where the Intestate Act once adverted to has been limited in its application. The Intestate Act is a unit and if any part of it is to be applied to the distribution of this estate, it must be applied in its entirety. The heirs of the life tenant could not be ascertained until she died. The Intestate Act of 1947 controls and not the Act of 1917. “. . . testator who commits the distribution of his estate to the law, upon the happening of an event necessarily future, must reasonably be presumed to have contemplated the possibility of a change in the law in the meantime”: Kohler’s Estate, 199 Pa. 455, cited with approval in Farmers’ Trust Company v. Wilson, 361 Pa. 43, 49. This has been the uniform practice in applying the Intestate Act in Bowen Estate, supra, Wetherill Estate, supra, and Diehl Estate, 66 D. & C. 530. The exceptions are sustained and the allowance of $10,000 claimed by the spouse of the deceased life tenant plus half of the balance is awarded to him. The readjudication is modified accordingly, but in all other respects confirmed absolutely.