Appeals, Nos. 161 and 162, Jan. T., 1958, from decree of Orphans' Court of Montgomery County, No. 34,208, in re estate of Edith E. Collins. Decree reversed.
Elkins Wetherill, with him Knox Henderson, and Henderson, Wetherill & O'Hey, for appellants.
George C. Denniston, with him Snyder & Bent, for appellees.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
These appeals present a single question: where a testatrix provides in her will that "Upon the death of either of my said children leaving descendants ... her surviving, to pay ... principal ... to such surviving descendants" are surviving children adopted by testatrix's daughter "descendants" within the meaning of the will?
On December 6, 1912 testatrix executed her will.*fn1 The pertinent paragraphs of the will are.*fn2 "Fourth. All the rest and residue of my property, real and personal, and wheresoever situated, I give, devise and bequeath unto [testatrix's two sons and a trust company] IN TRUST ...
"(1) To divide and pay over all the net income of my residuary estate, equally, share and share alike, to my three children Henry Hill Collins, Jr., Alfred
and appoint; and in default of such appointment to the heirs and next-of-kin of my said last surviving child, in accordance with the Intestate Laws of the State of Pennsylvania."
On September 25, 1921 testatrix died, her three children being then alive. Alfred M. Collins died in 1951, survived by his wife and one adopted daughter.*fn3 Henry H. Collins, Jr., died January 1, 1957, survived by his wife and four natural born children. Edith C. Perry - the "last surviving child" - died January 8, 1957, survived by her husband and two adopted children (the present appellants) - Barbara Wadhams, adopted when four years of age, on October 2, 1930 and David C. Perry, adopted when approximately eight years of age, on March 10, 1933.
Because of the termination of the trusts created under testatrix's will by reason of the life tenants' deaths a first and final account was filed. At the audit of this account the Orphans' Court of Montgomery County, over appellants' objections, awarded the entire principal of the estate to the four children of Henry H. Collins, Jr., deceased, ruling that Edith C. Perry's adopted children were not her "descendants" under testatrix's will.
Appellants do not base their claim upon the terms of any statute nor upon any contention that the will contains a gift to children, as such, of the life tenants. On the contrary, they claim that by testatrix's use of the word "descendants" in her will she intended to include therein persons to whom property descends under
the laws of Pennsylvania and that, as adopted children, they are within that class.
The determination of this controversy depends upon an interpretation and construction of the fourth paragraph of this will: an evaluation of testatrix's intent as and to the extent such intent may be evident from the language and terms of the instrument.*fn4 The key word is "descendants"; by the employment of this legal and technical word what class of takers did testatrix describe? In this connection it is important to note that this will - obviously a carefully drafted document - refers to five classes of possible takers of testatrix's property: children, grandchildren, descendants (mentioned eight times), next of kin, and heirs and next of kin, the latter two classes to be determined by the intestate laws of Pennsylvania. From the class of "descendants" testatrix's children are excluded both by her description of the events upon which "descendants" were to take and the share which they were to take: the reference in the third paragraph to certain named "grandchildren" did not operate to exclude them as "descendants" yet the terms of the fourth paragraph indicate that "grandchildren", while includable in the class of "descendants", ...