Appeals, Nos. 245 and 246, Jan. T., 1961, from decree of Orphans' Court of Philadelphia County, April T., 1901, No. 420, in re estate of Augustus Heaton, deceased. Decree affirmed.
William White, Jr., with him Alan Reeve Hunt, and Duane, Morris & Heckscher, for appellants.
Cuthbert H. Latta, with him Charles S. Port, of the New York Bar, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
The sole question involved is whether testator's heirs and next of kin are to be determined as of the date of his death or as of the date of death of the last surviving life tenant of the trust created for Rosalie and her issue. The facts may be summarized as follows:
Testator died on March 20, 1900, leaving a will dated February 27, 1900, and a codicil thereto dated March 3, 1900. He was survived by a son, Augustus G. Heaton, and a daughter, Rosalie H. Tows. Augustus died on October 11, 1930, and was survived by three children - (1) Augustus, who died April 11, 1936, without issue; (2) Harry, who died on September 21, 1933, and was survived by three children - great-grandchildren of testator - John G. Heaton, Caroline H. O'Connor and Mary H. Villemin; and (3) Perry, who died June 15, 1954, without issue. Upon the death of Perry, Harry's three children above mentioned, John, Caroline and Mary, inherited absolutely the balance of the principal of the trust created by testator for testator's son Augustus and Augustus's sons and issue. The net result has been that John, Caroline and Mary, who were the children of Harry and the great-grandchildren of testator, inherited outright and absolutely the principal of one-half of testator's trust estate. Two of these children, namely, John and Caroline, are the present appellants and claim the entire principal of the residuary trust which testator set up for his daughter Rosalie and her child Ferrars.
Testator's daughter, Rosalie H. Tows, died on September 14, 1919, and was survived by a son, Ferrars H.
Tows. Ferrars died testate, unmarried and without issue, on June 19, 1958; his executrix, Fay Jordan, is residuary legatee and the present appellee.
Testator gave his residuary estate in trust:
"(b.) All the rest and residue of the income of my trust estate I direct to be divided in two parts one of which shall be paid by my said trustees to my son, Augustus G. Heaton and ...