Appeal, No. 181, Jan. T., 1950, from decree of Orphans' Court of Philadelphia County, Oct. T., 1921, No. 2, in Estate of Michael P. Howlett, Deceased. Decree affirmed.
Gordon Butterworth, with him Abraham Berkowitz and John R. Meade, for appellants.
William E. Schubert, with him Randal Morgan, 3rd and Morgan, Lewis & Bockius, for appellee.
Before Drew, C.j., Stearne, Jones, Bell and Chidsey, JJ.
OPINION BY MR. JUSTICE CHILDSEY
Michael P. Howlett, a resident of Philadelphia, died on February 21, 1921, leaving a will executed on July 11, 1907, in which he created a trust of his residuary estate for payment of the net income in equal shares to his seven children during their lives, the share of income of any child dying during the continuance of the trust to be paid to such child's "issue", or in default of issue, to surviving children and the issue of deceased children.
John J. Howlett, a son died on September 28, 1947, during the lifetime of the trust, leaving no issue of the body but an adopted daughter, Mary M. Moyer. The adoption occurred on November 27, 1897. John J. Howlett was a co-trustee and following his death and account was filed, upon the audit of which it was adjudicated that the income which he had been receiving as a life tenant was payable after his death to the five surviving children of the testator and the issue of a deceased child. From the dismissal by the court en banc of exceptions filed to the adjudication this appeal has been taken by Mary M. Moyer, her adult children and a trustee and guardian ad litem for her minor and unborn descendants, appointed in connection with the determination of the legal question involved.
Appellants rely upon Section 16(b) of the Wills Act of June 7, 1917, P.L. 403, 20 PS § 228 which reads: "Whenever in any will a bequest or devise shall be made to the child or children of any person other than the testator, without naming such child or children, such bequest or devise shall be construed to include any adopted child or children of such other person who were adopted before the date of the will, unless a contrary intention shall appear by the will."
It is earnestly urged that the adoption here having occurred prior to the execution of the will, this section of the Wills Act of 1917 which was effective prior to
the testator's death is applicable and award of the John J. Howlett share of the income should have been made to his adopted daughter, Mary M. Moyer. Recognition of the principle that in effect and operation a will speaks as though executed immediately before death, would lend force to appellant's contention if testator had directed that upon the death of any of his children such deceased child's share of the income should be enjoyed by the latter's child or children, but he did not so provide. Paragraph Eighth of the testator's will which establishes the residuary trust (after providing annuities not here material) continues: "... as follows: -- to my children in equal shares from time to time during their lives, and upon the death before or after my death of any child leaving issue him or her surviving the share of the income which such child had been receiving or would have received if living shall be paid to the issue of such child as they shall survive from time to time during the continuance of this trust; and upon the death of any of my four children, Catharine Wilson, John J. Howlett, Margaret A. Walsh or M. Frances Howlett, dying without leaving issue him or her surviving the share of the income which any of them was entitled to shall be divided in equal shares and paid from time to time to all the others of my then surviving children and the issue of any deceased child... The said trust shall terminate upon the death of the survivor of the following named persons: [naming his seven children and others], and upon such termination, the principal of my estate shall ...