Appeals, Nos. 205 and 206, Jan. T., 1959, from decree of Orphans' Court of Philadelphia County, 1937 Term, No. 1546, in re estate of S. Pearce Holton, deceased. Decree affirmed.
C. Brewster Rhoads, with him William F. Drake, Jr., George G. Chandler, and Montgomery, McCracken, Walker & Rhoads, for appellants.
H. Ober Hess, with him Norman H. Brown, and Ballard, Spahr, Andrews & Ingersoll, for appellees.
Alexander Brodsky, in propria persona, guardian and trustee ad litem, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and McBRIDE, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
S. Pearce Holton, a lawyer and resident of Philadelphia, died on April 26, 1931. Under the terms of his will, - executed on March 16, 1929, - he created several trusts, a provision of one of which trusts is herein presented for construction and interpretation.
Under the eleventh paragraph of his will, the testator created a $400,000 trust which provided for the payment of the net income therefrom to the testator's son, Howard Holton, during his life, and, "at his death and until the expiration of twenty-one years" therefrom, "to divide the net income... into as many parts... as there shall be children of [Howard Holton] living at the quarterly distribution periods and children of [Howard Holton] then dead represented by descendants then living and to subdivide the shares falling to each set of descendants of a deceased child of [Howard Holton] amongst them per stirpes, upon the principle of representation, and to pay over to each child or descendants of a deceased child of [Howard Holton] then found entitled its share of such income..." Upon the expiration of the twenty-one year period, the trust principal was to be divided "into as many parts... as there shall be children of [Howard Holton] then alive and children of [Howard Holton] then dead, represented by descendants then living, and to subdivide the share falling to each set of descendants of a deceased child of [Howard Holton] amongst them per stirpes... and the shares thus ascertained to pay over to each child and descendants of a deceased child then found entitled, absolutely and in fee." If Howard Holton died "without leaving descendants him surviving or leaving descendants they should not survive to take principal", one-half of the principal of the fund was given to the testamentary appointee or appointees of Howard Holton and the other one-half of the principal was to be added to trusts created under the testator's will for John M. Holton,
Jr., and Mary Holton Globensky, children of testator's deceased son, John M. Holton.
Howard Holton married approximately ten years prior to the date of testator's will and approximately tweleve years prior to the date of testator's death and of this marriage no children were born. Approximately three years after testator's death the Howard Holtons adopted a girl, Henrietta Duke Holton, and almost four years after testator's death they adopted a boy, Samuel Pearce Holton. When Howard Holton died on December 4, 1957, he left to survive him, in addition to his widow, these two adopted children.
At an audit of the trustee's account, the Orphans' Court of Philadelphia County denied the claims of the two adopted children to this trust fund. Exceptions to this adjudication were dismissed and a final decree entered.*fn1 From that decree the adopted children have appealed.
Under the provisions of testator's will, are these two children, adopted subsequent to the date of testator's will, to be considered as Howard Holton's "children" for the purpose of receiving initially the net income from the trust, and, if they survive the requisite twenty-one year period, of receiving eventually distribution of the principal of the trust? In resolving this question two inquiries must be pursued: first, to determine whether, within the four corners of this will, the testator evidenced any intent that Howard Holton's adopted children should be included in or excluded from the word "children" and, if such intent is evidenced, it will prevail; second, in the absence of any evidence of testator's
intent, expressed or implied, in the will, to determine the impact of section 16(b) of the Wills Act of 1917*fn2 upon the construction and interpretation of this will.
An examination of the language of this will reveals no manifest expression of the testator's intent in this respect; if such intent is present it must arise by implication. The appellants contend that an implication of an intent on the part of the testator to include adopted children within the word "children" arises both from the language of the eleventh paragraph of the will and from a comparison of the language of paragraphs eleventh and twelfth. The appellants argue that in the eleventh paragraph when the testator used the word "descendants" in juxtaposition with the words "child" and "children" he used such words synonymously, and, since we held in Collins Estate, 393 Pa. 195, 142 A.2d 178, that the word "descendants" may include adopted children, Collins should control and the words "child" or "children" likewise be held inclusive of an adopted child or children. From a study of the language of this will it is apparent that Collins is wholly inapposite. Testator did not use "descendants" synonymously with "child" or "children"; it is clear that the testator's reference to "child" or "children" was to members of a third generation class while his reference to "descendants" was to members of a fourth generation class. Judge LEFEVER in the court below aptly stated: "... it is clear that the only rights of [the adopted children] are as children or descendants of deceased children of [Howard Holton]. They cannot by implication elevate themselves into a broader class described as 'descendants'...".
The appellants further contend that the testator's use of the word "issue" in the twelfth paragraph of the
will - wherein he created a trust for the benefit of the widow and two children of his deceased son, John M. Holton - when compared with the testator's use of the word "descendants" in the eleventh paragraph is most significant. According to appellants, this significance lies in the fact that "issue" denotes only actual physical offspring, while "descendants" may include adopted children and the testator, a well trained lawyer, must have employed these different words to indicate an intent in the twelfth paragraph to provide for his deceased son's natural children and in the eleventh paragraph by the broad term "descendants" to provide for possible adopted children. Such a contention is without merit. The eleventh and twelfth paragraphs each provide dissimilar gifts for entirely dissimilar situations; it is obvious that the testator selected language which would be appropriate for each different situation. No significance can be attached to this variation in language.
Our examination of this will reveals no intent, expressed or implied, that the testator contemplated either the inclusion in or the exclusion from the word "children" of adopted children. The will is silent on the subject.
Our next inquiry is the impact, if any, of the Wills Act of 1917, supra, on the construction and interpretation of this will.
The legislature in the Wills Act of 1917, § 16(b)*fn3 provided: "Whenever in any will a bequest or devise shall be made to the child or children of any person other than the testator, without naming such child or children, such bequest or devise shall be construed to include any adopted child or children of such other person who were ...