June 30, 1958
Appeals, Nos. 11 and 12, May T., 1958, from decree of Orphans' Court of York County, 1957, in re estate of Rebekah L. Bonham, deceased. Decree affirmed.
Wentworth D. Vedder, iii, with him Morris & Vedder, for appellants.
W. W. Van Baman, with him George Hay Kain, and Kain, Kain & Kian, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
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OPINION BY MR. JUSTICE ARNOLD
Rebekah L. Bonham died testate leaving a will dated December 10, 1912, and probated in York County, in which she named the Guardian Trust Company as executor and trustee. The trust was for the benefit of three daughters, Elizabeth S. Bonham, Any Bonham and Eleanor Bonham, to invest the principal and pay the income annually in equal parts to the beneficiaries named, with a gift over upon the decease of any of her daughters without children.In the event any of
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the daughters died without issue, then her share should go to the surviving daughter and the issue of any deceased daughter, per stirpes, upon the same trust as theretofore set forth.
Two of the daughters, Amy Bonham Sullivan and Eleanor Bonham McCoy, died without issue, leaving Elizabeth S. Bonham as the only surviving daughter of the testatrix. She is now past 82 years of age; and it is admitted that she has never married and is incapable of bearing children.
On her petition to do so, the orphans' court terminated the trust, concluding that the entire corpus is now vested absolutely in the petitioner, Elizabeth S. Bonham, and directed the trustee to file its final account. The pertinent portions of the will of Rebekah L. Bonham appear on the margin hereof.*fn1
The question raised by these circumstances is whether the surviving sister is now entitled to a termination of the trust, and to receive the corpus of the trust upon such termination. The answer rests upon a determination of the testator's intention as evidenced by the words of her will; and we find that the case is controlled by Haydon's Estate, infra.
In Haydon's Estate, 334 Pa. 403, 405, 407, 6 A.2d 581, the testator made bequests to each of his daughters,
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Bertha and Mary. The gift to Mary read as follows: "I give to my daughter Mary Haydon the same amount, [as was given to Bertha] Fifty thousand dollars to be placed in trust ..., the interest on which to be paid her semi-annually during her life. If she dies without issue the said sum of Fifty thousand dollars will revert to her sister Bertha H. Morris." There was a like provision with a gift over to Mary in case of the death of Bertha H. Morris. The residuary clause gave the residue of his estate to his wife for life, and provided that upon her death the executor should divide the residue between the two daughters or their direct heirs in blood relation. Bertha died without issue and her fund in the trust was awarded to Mary by the orphans' court in accordance with the gift over to her. Mary died without issue. The trustee filed an account of the second trust and asked the court to distribute the balance. Relying upon Boies' Estate, 177 Pa. 190, 35 A. 724; Kelly v. Pennsylvania Railroad Company, 226 Pa. 540, 75 A. 734; Gunnell's Estate, 269 Pa. 343, 112 A. 450, this Court held that the interest which Mary had under the will was a fee rather than a mere life estate, and the direction that the fund be held as a trust during Mary's lifetime was for the purpose of relieving Mary of the burden of proper administration thereof, and did not show an intention to cut down her bequest to a life estate. We also declared that Mary received an interest in fee, subject only to the condition that if she died without issue, her estate should pass to her sister. We there posed the question: "Does the gift over of Mary's share take effect upon Mary's death without issue where Bertha has already died without leaving issue?" We held that "'... mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful ...'"; and that "where an absolute estate is devised
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authority to supply"; and we thus properly declared a partial intestacy as to the nephew's one-fourth interest, for the testatrix had definitely failed to provide for the contingency that one of the nephews might die without children. See also Wainwright's Estate, 376 Pa. 161, 101 A.2d 724.
The appellant conceded that if Eleanor Bonham McCoy and Amy B. Sullivan have no interest in the principal of the Rebekah L. Bonham Estate, then the trust may be terminated. Nor is this case controlled by Bosler Estate, 378 Pa. 333, 107 A.2d 443, in which this Court refused to terminate spendthrift trusts. There were no spendthrift provisions in the instant trusts.
Mr. Justice BELL dissents.
The decree of the learned court below is affirmed; costs of the proceeding to be paid out of the funds of the trust.