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April 1, 1953


Appeals, Nos. 307, 308 and 309, Jan. T., 1952, from decrees of Orphans' Court of Philadelphia County, Oct. T., 1897, No. 82, 1933, No. 1576 and July T., 1879, No. 170, in Estates of Joseph S. Lovering, Sr., deceased, Charlotte Brown Wharton, deceased, and Washington Brown, deceased. Decrees affirmed; reargument refused April 28, 1953.


Charles J. Biddle, with him J. Horace Churchman, for appellant.

Edward M. David, with him Saul, Ewing, Remick & Saul, Edward Paul Smith, Thomas W. Maher and John Russell, Jr., for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stearne

[ 373 Pa. Page 362]


The single question raised by the three appeals, which were argued together, concerns the exercise of powers of appointment by Joseph S. Lovering Wharton (hereinafter called Joseph, Sr.), in his own will, of appointive trust estates under the respective wills of his first wife's father, of his first wife, of his maternal grandfather and of his mother.

Appellant is Katherine C. Wharton, widow and appointee under the will of her deceased husband, Samuel Brinton Shoemaker Wharton, a son of Joseph, Sr. Under the will of Joseph, Sr., Samuel was given a testamentary power of appointment over the corpus of his share of the appointive estates. Upon the death of appellant's husband in 1943, she received, under the power of appointment given her husband, the share of copus which was then due. Appellant contends, however, that at the termination of the trusts in 1952, she is also entitled to receive the distributive share of corpus of Samuel's trust estate as one of the "persons... who would... be entitled to receive the income" from the appointed trusts under the will of Joseph, Sr. The Orphans' Court of Philadelphia County decided that she was not so entitled and awarded such corpus to the persons who were, at the termination of the trusts, entitled to receive income. The appeals followed.

The principles of law involved are plain. The factual situation is complicated because of the necessary

[ 373 Pa. Page 363]

    recitals of the various trust provisions. When the applicable facts are marshalled and properly analyzed, most of the difficulties in this will construction are dissipated.

The provisions of the various appointive trust estates may be thus summarized: WASHINGTON BROWN, the father of Joseph, Sr.'s first wife, Charlotte, died January 21, 1869. He bequeathed a fund in trust for his daughter Charlotte and gave her a testamentary power of appointment. Charlotte appointed a portion of the corpus for the use of her husband, Joseph, Sr. and gave him a testamentary power of appointment. The fund amounted to $38,058.63. JOSEPH S. LOVERING (maternal grandfather of Joseph, Sr.) died May 8, 1881. He gave a testamentary power of appointment to his daughter, Mary L. Wharton (mother of Joseph, Sr.) over principal which amounted to $72,405.91. The daughter died July 1, 1897, and gave a power of appointment to her son, Joseph, Sr. CHARLOTTE BROWN WHARTON (the first wife of Joseph, Sr.) died September 10, 1886. She created a trust under her will, wherein she gave her husband, Joseph, Sr. a testamentary power of appointment over a trust fund of her individual estate which amounted to $18,352.11. (This is exclusive of the trust fund under Charlotte Brown Wharton's father's will above recited).

JOSEPH, SR. (Joseph S. Lovering Wharton) possessed of an individual estate and also of the testamentary powers of appointment under the trusts above recited, died March 17, 1931. By item two of the seventh codicil of his will, he exercised the testamentary powers of appointment in this language: "... I give, devise and bequeath the said estates over which I have such powers to my Trustees hereinbefore named, and the survivors or survivor of them, and their successors,

[ 373 Pa. Page 364]

IN TRUST, NEVERTHELESS, to hold, invest and reinvest the same and to apply the same, both principal and income, upon the trusts and for the purposes and in the manner set forth in Item One of this codicil with respect to my residuary estate;..." Referring then to said item one, the gist of his testamentary scheme is: one-half of the principal of the residuary estate was placed in trust to pay the net income for life to his wife, Amelia Bird Shoemaker Wharton (Joseph, Sr.'s second wife, who still survives.) Upon Amelia's decease the trust was to continue and the income was thereafter to be paid: one-third to his son Charles, one-third to his son Samuel, two-ninths to his son Joseph, Jr., and one-ninth to his grandson, Joseph, 3rd, and at their respective deaths the corpus of their shares was to pass under a general testamentary power of appointment granted to each son and the grandson. The remaining half portion of the residuary estate (not subject to Amelia's life estate), was directed to be held in trust to pay the income to the named sons and grandsons of Joseph, Sr., in specified proportions, and upon their deaths to pay the corpus in accordance with their respective general testamentary powers of appointment. (Although not presently involved, it is to be noted that from this portion of Joseph, Sr.'s residuary trust estate there was first to ...

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