Appeals, Nos. 28, 29, 30, 31 and 34, Jan. T., 1952, from decree of Orphans' Court of Montgomery County, No. 52,511, in Estate of Rose A. Britt, deceased. Decree affirmed.
Warren S. Spalding, with him Gilbert Cassidy, Jr., Joseph H. Cochran and Fell & Spalding, for appellants in Appeals Nos. 28, 29, 30 and 31.
Cassin W. Craig, with him Leonard A. Talone, for appellant in Appeal No. 34.
John F. Thaete, with him William F. Fox, Walter B. Gibbons and Fox & Honeyman, for certain appellees in Appeals Nos. 28, 29, 30, 31 and 34.
Russell J. Brownback, with him Roger B. Reynolds and Donald J. McGonigal, for certain appellees in Appeals Nos. 28, 29, 30, 31 and 34.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
Where a testamentary residuary trust estate is created to pay the income for life to each of five specifically named nephew and nieces and upon the death of a nephew or niece to pay $10,000 from the trust principal to each living child of a nephew or niece so dying, is this gift of $10,000 payable to each living child of all of testatrix' nephews and nieces or only to each living child of the five named nephew and nieces who were the life tenants?
Rose A. Britt, the testatrix, died April 4, 1949 leaving a last will dated December 3, 1947, and three codicils. Her gross estate exceeded $700,000; her residuary estate was approximately $418,000. After some personal and charitable bequests, testatrix gave $10,000 to her brother, Benjamin T. Britt, and $1,000 to to each of his children who survived her. The next paragraph of her will contained the following controversial gift: "ELEVENTH. All the rest, residue and remainder of my estate of whatsoever kind and wheresoever situate, real, personal and mixed, I give, devise and bequeath to my Trustees hereinafter named, IN TRUST, to invest the same and keep the same invested and until the time fixed for the termination of the trust as hereinafter provided, to pay over the net income quarterly, in equal shares, to and among such of the following nephews and nieces of mine*fn* as may
be living at each such quarterly period of distribution: Edward C. Britt, Esther N. Lipp, Miriam K. Grauch, Rosemary Britt and Vera A. Jones; provided, however, that upon the death of a nephew or niece of mine leaving a child or children him or her surviving, my Trustees shall pay over out of the principal of the trust estate the sum of Ten Thousand Dollars ($10,000.) to each living child of a nephew or niece of mine so dying. IN TRUST upon the death of the last survivor of my aforenamed nephews and nieces, I direct my Trustees, or the survivor of them, to convert the entire trust fund as it may then exist (after providing for the children of my nephews and nieces as hereinabove set forth) into cash,..."; and to pay the balance to certain named charities. Testatrix also executed three codicils, the last of which, dated January 24, 1948, was informal and contained the following statement: "Knowing that my brother Ben's children will be very well provided for, accounts for my leaving less to them. I love them all dearly."
Testatrix at the time she executed her will had one brother who was living, Benjamin T. Britt, and five brothers who were deceased. Two brothers, Albert J. and Walter F. Britt, were dead without issue; one brother, Edward, left one child, Rosemary Britt; one brother, Charles, left three children, Esther N. Lipp, Miriam K. Grauch and Edward C. Britt; and one brother, William, left one child, Vera A. Jones, then living. This nephew and these four nieces were specifically named as life tenants in the residuary (eleventh) paragraph of testatrix' will. Ben had six living children who were between 36 and 48 years of age, and one child who was deceased, leaving four surviving children. ...