Appeals, Nos. 127, 129, 133, 134, 137, 138 and 139, March T., 1961, from decree of Orphans' Court of Allegheny County, No. 1890 of 1938, in re estate of Jacob J. Vandergrift, deceased. Decree affirmed; reargument refused January 26, 1962.
Clyde W. Armstrong, with him Thorp, Reed & Armstrong, for administrator d.b.n., appellant.
Frank W. Ittel, with him G. Donald Gerlach, and Reed, Smith, Shaw & McClay, for executors and trustees, appellants.
Tice F. Ryan, Jr., with him Wayland S. Bowser, Walter M. Newman, and Ryan, Newman, geer & Goldring, for Marjorie Holmes Vandergrift, appellant.
William McC. Houston, with him Fred C. Houston, Jr., Armin H. Friedman, and Houston & Houston, for executrix, appellant.
John G. Buchanan, Jr., with him John G. Buchanan, Rex Rewland, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for Helen B. Mercer, Alice V. Gordon and Virginia Summerlin Sullivan, appellants.
William H. Eckert, with him W. Gregg Kerr, Jr., and Eckert, Seamans & Cherin, for Virginia Spencer Estate, and Carl Brandt, guardian and trustee ad litem, appellees, and Carl Brandt, as guardian and trustee ad litem, appellees.
Adie Allen Stevens, II, with him Frank A. McFerran, Jr., and Kenney, Stevens, Hill & Clark, for administrator of estate of John M. Vandergrift, appellee.
Henry C. Herchenroether, Jr., with him Alter, Wright & Barron, for trustee in bankruptcy for J. Jay Vandergrift, appellee.
Hohn C. Hanna, with him Metz, Cook, Hanna & Kelly, for Pittsburgh National Bank, surviving trustee, appellee.
Tice F. Ryan, Jr., Wayland S. Bowser, Walter M. Newman, and Ryan, Newman, Geer and Goldring, for Marjorie Holmes Vandergrift, appellee.
Before Bellc. J., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
J.J. Vandergrift, a resident of Pittsburgh, died testate on December 26, 1899, survived by his second wife and five children.*fn1
Vandergrift's will - obviously lawyer-drawn - provided, inter alia: (1) the first seven articles dispose of specific pieces of property and set forth the treatment of claims and advancements which involved the testator's relatives and friends; (2) the eighth article provided for legacies, including bequests of $100,000 to each of testator's five living children and a large bequest to testator's confidant, James I. Buchanan; (3) the ninth article gives "the rest and residue of [testator's] estate" to the executors, in trust, to "carry out the provisions and directions" of the will; (4) the tenth article creates a trust for testator's only living grandchild whose father predeceased testator; (5) the eleventh article provides the manner of disposition of the residue of the estate; (6) the twelfth article contains administrative provisions; (7) the thirteenth article appoints the executors; (8) the fourteenth article requests testator's children to counsel with James I. Buchanan.
Disposition of most of the present appeals depends, in large part, on the construction of Article XI which provides, inter alia: "ARTICLE XI. I will and direct that all the remainder of the rest and residue of my estate, real, personal, and mixed, be divided into two parts or portions by my executors, leaving the character of the property and the amount to be assigned to each portion to the discretion of my executors, and that one portion of such estate be given, transferred, and paid over to James I. Buchanan, my son Samuel H. Vandergrift, my son in law John A. Johnston and a Trust Company located in the City of Pittsburgh, Pennsylvania, to be selected by my executors, and that the other portion of said estate be given, transferred and paid over to the said James I. Buchanan, my son Samuel H. and my son in law John A. Johnston and another and different Trust Company located in the said Dity of Pittsburgh to be selected by my executors, each portion
of the said estate to be held by the said James I. Buchanan, Samuel H. Vandergrift, John A. Johnston and the said Trust Company as trustees, in trust to manage and control the same, to invest and keep invested the same, to collect and receive the rents, issues profits and income thereof; and after deducting expenses and reasonable compensation to the said trustees to pay over the net income thereof, as nearly in quarterly payments as may be done, to the following persons for and during the natural life of each, in the proportions following:
"To my son Samuel H. Vandergrift the one equal fifth part thereof.
"To my son Joseph B. Vandergrift the one equal fifth part thereof.
"To my daughter Kate V. Bingham, the one equal fifth part thereof.
"To my daughter Henrietta V. Johnston the one equal fifth part thereof.
"To my daughter Maggie F. Murphy the one equal fifth part thereof; and upon the death of each of my said sons and daughters, to pay, transfer, deliver and convey the one fifth of the principal of said trust funds or estates freed and discharged from this trust to the child or children of such deceased son or daughter, living at the time of the death of such son or daughter, and the issue, if any, of any deceased child or children. If any of my said sons or daughters shall die leaving but one child to survive him or her, and no issue of a deceased child, then such child shall receive the whole one fifth of said two trust funds or estates; if any of my said sons or daughters, shall die leaving more than one child to survive him or her, but no issue of a deceased child, then, the said one fifth of said trust funds or estates, shall be divided equally between or among said surviving children share and share alike; if any of my said sons or daughters shall die leaving a child or children and the issue of a deceased child or children
surviving him or her, then the said one fifth of said trust funds or estates shall be divided equally among such surviving child or children and the issue of a deceased child or children, the issue of a deceased child, counting as one in said division and taking the share his, her or their parent would have taken if living.
"If any of my said sons or daughters die either before or after my decease without leaving any child or any issue of a deceased child surviving him or her, then, the income from said share shall be paid to his or her surviving brothers and sisters for and during the natural life of each surviving brother and sister, and, upon the death of any one of said surviving brothers and sisters, the share of the principal of the said trust funds or estates to be paid over to the children and issue of children of such deceased surviving brother or sister shall be proportionately increased, that is to say, if any of my said sons or daughters shall so die without leaving any child, or any issue of a deceased child to survive him or her, then the share of the income to be paid to each of my surviving sons and daughters shall be increased to one fourth, and the said share of the principal of said trust funds or estates to be paid over upon the death of any one of such surviving sons, or daughters, to his or her children, and issue of deceased children shall be increased to one fourth and so on."
Certain factual background is vital to an understanding of the instant controversy. Kate V. Bingham, a daughter of testator, died April 7, 1900 survived by Helen B. Mercer who is still living. Joseph B. Vandergrift, a son of testator, died May 23, 1915 survived by two sons, J. M. Vandergrift and J. Jay Vandergrift; the former died July 29, 1939*fn2 and the latter died October
15, 1959.*fn3 Samuel H. Vandergrift, a son of testator, died September 21, 1926 survived by Alice V. Gordon who is still living. Henrietta V. Johnston, a daughter of testator, died March 28, 1930 survived by a daughter, Virginia Summerlin Spencer. Virginia Summerlin had two children, George T. Summerlin, Jr., who died October 19, 1934 survived by a daughter, Virginia S. Sullivan, and John V. Summerlin, who died January 21, 1943 survived by three children, Harriet S. Humphrey, John V. Summerlin, Jr., and Dolores S. Kelchner.*fn4 Upon the death of these four children of testator ...