Appeal, No. 221, Jan. T., 1953, from decree of Orphans' Court of Philadelphia County, April T., 1919, No. 125, in Estate of Samuel Dickson, deceased. Decree affirmed. Audit of account of trustees. Before SAYLOR, J. Adjudication filed disallowing claim of son to intestate share; exceptions to adjudication dismissed and final decree entered, opinion by BOLGER, J. Son appealed.
J. Webster Jones, for appellant.
John E. Stevenson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The trustees under the will of Samuel Dickson, deceased, filed a Fourth Account at the audit of which his son, Arthur G. Dickson, the life tenant, claimed he was then entitled to 4/7ths of the principal of the trust by a coalescence or merger of the life estate and remainder interest.
Testator left his residuary estate in trust to pay the income to his son Arthur for his life, remainder to his children or issue, if any, and if he left no child or issue living at his death "to the nieces of my late wife living at the time of my*fn* death."
Testator was survived (1) by a son who is 79 years of age, who has no children or issue, and (2) by 7 nieces of his wife, 3 of whom are still living and 4 of whom have died without issue. Testator's son claims that he is immediately entitled to 4/7ths of the remainder of the estate on the ingenious theory that since it is impossible for him to have children or issue, there was an intestacy as to these remainder interests and since he is the testator's sole heir, his life estate merged or coalesced with the remainder. There are many reasons why this appeal must fail, several of which we shall discuss.
In the first place Dickson no longer has a life estate, and consequently there could not possibly be a merger.
Dickson went into bankruptcy in 1932. The trustee in bankruptcy sold at public auction all the right, title and interest of the bankrupt under the will of his father, Samuel Dickson, including his life estate in (one-half of) the net income therefrom. This interest was purchased by Henry S. Drinker, Jr., individually, and also for and on behalf of the law firm of Drinker,
Biddle & Reath. Mr. Drinker and Drinker, Biddle & Reath thereupon created an irrevocable trust to which they transferred, assigned and delivered to the Fidelity-Philadelphia Trust Company all of the aforesaid right, title and interest which Drinker had purchased at the bankruptcy sale. This trust provided, inter alia, that the trustee should hold the said estate in trust to pay the net income quarterly to Arthur G. Dickson for his life, and upon his death to convey, assign, transfer and pay over all property then held by the trustee to his wife. Mr. Dickson's wife is now deceased. The trust deed also contained the usual spendthrift trust provisions. It ...