Appeals, Nos. 177, 178 and 179, Jan. T., 1958, from decree of Orphans' Court of Lackawanna County, Dec. T., 1957, No. 391 of 1923, in case of estate of David Bishop Hand, deceased. Decree reversed.
Philip Price, with him James W. Scanlon, Cuthbert H. Latta, and Barnes, Dechert, Price, Myers & Rhoads, for appellants.
Norman H. Brown, with him Bruce L. Castor, H. Ober Hess, and Ballard, Spahr, Andrews & Ingersoll, for appellees.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Cromwell Hand's heirs filed a claim for "excess royalties" at the audit of the fourth and final account
of the trustee*fn1 of the will of Dr. David Bishop Hand, who was Cromwell's father. Dr. Hand's testamentary (residuary) trust has terminated and the principal is presently distributable to the remaindermen. The lower Court allowed the claim.
The question involved narrows down to this: Are the heirs of Cromwell Hand entitled to "excess royalties" under the contract made between Denver Chemical Company and the trustee of the will of Dr. Hand?
Dr. Hand died April 1, 1923. He bequeathed his residuary estate in trust to pay the income - one-third to his widow for her life, one-third to his daughter, Mrs. Dean, for her life, and one-third to his son, Cromwell, for his life. He further provided that after the death of the survivor of his widow and his son and his daughter (which occurred in 1956), the principal of the trust should be paid "equally among and between the widow of my son, FREDERICK CROMWELL HAND and all of my grandchildren, the issue of any deceased grandchild to take the share of his, her or their parents, it being my intention that my grandchildren shall take per capita and not per stirpes, and that the widow of my said son, FREDERICK CROMWELL HAND, shall rank and count as one of such grandchildren." The three children of Mrs. Dean, who are remaindermen, are the appellants.
Dr. Hand, a Scranton physician, invented a number of proprietary medicines. In 1889 he made a royalty contract for these medicines with the predecessor of Smith, Kline & ...